Lira v. Ryan et al

Filing 19

ORDER ACCEPTING IN PART AND MODIFYING IN PART THE REPORT AND RECOMMENDATION. 16 as set forth in this order. Petitioner's petition for writ of habeas corpu 1 is denied. A certificate of appealability is denied. (See document for further details). Signed by Judge David G Campbell on 4/23/14. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Victor Lira, No. CV-13-01989-PHX-DGC Petitioner, 10 11 v. 12 ORDER Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court are Petitioner Victor Lira’s petition for writ of habeas 16 corpus (Doc. 1), United States Magistrate Judge James Metcalf’s Report and 17 Recommendation (“R&R”) (Doc. 16), and Petitioner’s objections to the R&R (Doc. 17). 18 The R&R recommends that the Court deny the petition, and, if the Court adopts the R&R 19 findings, that a certificate of appealability be denied. Doc. 16 at 32. The Court will 20 accept the R&R with slight modifications, deny the petition, and deny the certificate of 21 appealability. 22 I. Background. 23 In 2005, Petitioner was involved in a knife fight. He fatally cut the victim and 24 then drove away in the victim’s car with her purse and cash. Doc. 16 at 1-2. Petitioner 25 was charged in Pinal County Superior Court with first-degree murder, armed robbery, 26 and theft. On September 13, 2007, he was indicted in a second indictment on charges of 27 second-degree murder, automobile theft, and armed robbery. 28 indictments were consolidated. Id. Petitioner entered into a plea agreement with the state Id. at 2. The two 1 in which he agreed to plead guilty to manslaughter. Id. On April 8, 2008, the plea was 2 accepted and Petitioner was sentenced to 19 years in prison. Id. 3 On October 1, 2013, Petitioner, through his counsel, filed a petition for writ of 4 habeas corpus on the following two grounds: (1) insufficient factual basis for the plea, 5 and (2) ineffective trial counsel. 6 II. Legal Standard. 7 A party may file specific, written objections to an R&R within ten days of being 8 served with a copy the R&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The 9 Court must undertake a de novo review of those portions of the R&R to which specific 10 objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. 11 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or 12 modify, in whole or in part, the findings or recommendations made by the magistrate 13 judge. See 28 U.S.C. § 636(b)(1). 14 III. Analysis. 15 Petitioner objects to the R&R’s recommendations that (1) Petitioner’s insufficient 16 factual basis claim should be denied for lack of merit; (2) Petitioner’s ineffective 17 assistance of counsel claim should be denied for lack of merit; and (3) Petitioner should 18 not be granted a certificate of appealability. Doc. 17 at 1. 19 A. Insufficient Factual Basis. 20 Petitioner objects to the R&R’s finding that a factual basis was not required 21 because he did not protest his innocence. Doc. 17 at 4. “[T]he due process clause does 22 not impose on a state court the duty to establish a factual basis for a guilty plea absent 23 special circumstances.” Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985); see 24 also Loftis v. Almager, 704 F.3d 645, 648 (9th Cir. 2012) (“habeas courts have held that, 25 unless a plea is accompanied by protestations of innocence or other ‘special 26 circumstances,’ the Constitution does not require state judges to find a factual basis”). A 27 special circumstance, such as a “defendant’s protestation of innocence,” may “impose on 28 a state court the constitutional duty to make inquiry and to determine if there is a factual -2- 1 basis for the plea.” Id. “When a defendant pleads guilty or no contest without claiming 2 innocence or otherwise making statements calling into question the voluntariness of his 3 plea . . . the finding of a factual basis is not essential to voluntariness.” Loftis, 704 F.3d 4 at 650. 5 During his change of plea hearing, Petitioner responded to the court’s question of 6 whether his cut led to the victim’s ultimate death by saying: “[i]t’s never been – they 7 never established that.” Id. Petitioner contends that he thereby “expressed his belief that 8 he was not responsible for the victim’s death.” Doc. 17 at 6. The R&R found, however, 9 that “Petitioner merely equivocated on whether the prosecution had ‘established’ that he 10 was the cause of death, he did not assert that he in fact was not.” Doc. 16 at 15. The 11 Court agrees that Petitioner’s assertion was not a protestation of innocence. 12 Petitioner contends that he attempted to “unequivocally express his innocence,” 13 but he was “cut off by his own counsel.” Doc. 17 at 6. The record does not support this 14 contention. When Petitioner’s counsel stated that “there’s every reason to believe that it 15 was this cut or more than one cut that did lead to her death,” the Court asked whether 16 Petitioner was satisfied by the investigation conducted by his attorney. He responded 17 “[y]es.” Doc. 16 at 14. Because “it is the defendant’s duty to assert innocence,” and 18 Petitioner did not do so, the state court did not need to find a factual basis for the plea. 19 Id. at 15; Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 2000). 20 Petitioner also objects to the R&R’s finding that he did not assert that the state 21 court’s decision was “unsupported by sufficient evidence.” Doc. 16 at 6. Pursuant to 28 22 U.S.C. § 2254(d)(2), “[a]n application for a writ of habeas corpus . . . shall not be granted 23 . . . unless the adjudication of the claim. . . . resulted in a decision that was based on an 24 unreasonable determination of the facts in light of the evidence presented in the State 25 court proceeding.” When a petitioner makes a challenge based on an unreasonable 26 determination of the facts, the “challenge may be based on the claim that the finding is 27 unsupported by sufficient evidence.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 28 2004). -3- 1 Petitioner argues that the state court “should have established the factual record on 2 more than unreliable hearsay statements.” Doc. 17 at 7. As the R&R noted, however, 3 Petitioner did not provide any authority that “makes a state court’s reliance on what 4 might ultimately turn out to be inaccurate testimony an unreasonable determination.” 5 Doc. 16 at 16. Therefore, the R&R found, Petitioner did not challenge the sufficiency of 6 the evidence in supporting the state court’s decision. Id. The Court agrees. 7 But even if the Court were to accept Petitioner’s contentions that he did challenge 8 the sufficiency of evidence, the state court’s decision was not based on an unreasonable 9 determination of the facts. According to Petitioner’s statements during the plea colloquy, 10 he cut the victim in the left breast area. Doc. 16 at 19. The prosecutor stated that, 11 according to the medical examiner’s report, there was a “puncture wound to that area . . . 12 that ended up puncturing her lung that may have been one of the fatal wounds.” Id. at 20. 13 Moreover, the trial court considered information from the first and second grand jury 14 transcripts which included evidence that (1) the autopsy listed the cause of death as stab 15 wounds to the neck and torso; (2) Petitioner had been using marijuana and 16 methamphetamine prior to his knife fight with the victim; (3) Petitioner stated he was 17 fighting the victim’s cousin, the victim intervened and he cut her on her shoulder; (4) the 18 victim’s cousin was elderly, suffering from diabetes and Hepatitis C, and was a hospice 19 patient; (5) the victim sustained a variety of knife wounds to her chest, throat area, 20 shoulder, knee, and skull, some of which were defensive in nature; (6) Petitioner said he 21 accidentally stabbed victim at least once or a couple of times – he was unsure of how 22 many; and (7) the victim engaged in a violent struggle, with defensive wounds, blood 23 spatter on three walls, and the bed torn apart. Doc. 16 at 20-21. Given this information, 24 there is strong evidence that Petitioner committed manslaughter by “recklessly causing 25 the death of another person” pursuant to A.R.S. § 13-1103. The Court finds that the state 26 court’s determination did not constitute an unreasonable determination of fact. 27 B. Ineffective Assistance of Counsel. 28 Petitioner objects to the R&R’s finding that the claims of ineffective assistance of -4- 1 counsel lack merit. Doc. 17 at 8-11. To establish ineffective assistance of counsel, a 2 petitioner must show (1) counsel’s representation fell below an objective standard of 3 reasonableness, and (2) she was prejudiced as a result. Strickland v. Washington, 466 4 U.S. 668, 688-92 (1984). To establish prejudice, a defendant must show “that there is a 5 reasonable probability that, but for counsel's unprofessional errors, the result of the 6 proceeding would have been different.” Id. at 694. A “reasonable probability” is one 7 “sufficient to undermine confidence in the outcome.” Id. “Unless a defendant makes 8 both showings, it cannot be said that the conviction . . . resulted from a breakdown in the 9 adversary process that renders the result unreliable.” Id. at 687. 10 A court's “[r]eview of counsel’s performance is highly deferential and there is a 11 strong presumption that counsel’s conduct fell within the wide range of reasonable 12 representation.” United States v. Ferreira-Almeda, 815 F.2d 1251, 1253 (9th Cir. 1986) 13 (citation omitted). Moreover, courts are reminded to make “every effort . . . to eliminate 14 the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 15 challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 16 Strickland, 466 U.S. at 689. 17 The R&R found that “in light of the grand jury transcripts, any objection by trial 18 counsel, even efforts to introduce the autopsy report or explicit denials from Petitioner, 19 would not have eliminated the trial court’s ability to find a sufficient factual basis.” 20 Doc. 16 at 25; see Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (finding that failure 21 to take a futile action can never be deficient performance). Petitioner contends that his 22 counsel behaved unreasonably by failing to “address and advocate Petitioner’s belief that 23 he was not the cause of the victim’s death.” Doc. 17 at 9. Yet, as the R&R correctly 24 found, “[a] guilty plea is not a trial,” and “defense counsel at a guilty plea proceeding is 25 seeking to effectuate and secure to the defendant the benefits of a plea agreement.” 26 Doc. 16 at 26. Therefore, “reasonable counsel often seeks to facilitate the establishment 27 of a factual basis, rather than seeking to destroy it.” Id. The Court agrees that under 28 these circumstances, counsel did not act deficiently. -5- 1 The R&R also found that “even if counsel was deficient, Petitioner fails to 2 establish prejudice.” Id. at 27. “[I]n order to satisfy the ‘prejudice’ requirement, the 3 defendant must show that there is a reasonable probability that, but for counsel’s errors, 4 he would not have pleaded guilty and would have insisted on going to trial.” Hill v. 5 Lockhart, 474 U.S. 52, 59 (1985). Applying Hill, the R&R found that Petitioner did not 6 provide any support for the contention that “had counsel opposed the factual basis he 7 would have refused to plead guilty and would have proceeded to trial.” Doc. 16 at 28. 8 Moreover, the R&R found that Petitioner did not present any “viable reason why he 9 would have proceeded to trial.” Id. at 30. 10 Relying on Strickland and Hill, Petitioner contends that he need only show that he 11 would have rejected the manslaughter plea in order to satisfy the prejudice requirement. 12 Doc. 17 at 10. Yet, the language of Hill plainly states that satisfaction of the Strickland 13 prejudice prong requires finding that the petitioner would not have pled guilty and would 14 have insisted on going to trial. Hill, 474 U.S. at 59; see also Lafler v. Cooper, 132 S. Ct. 15 1376, 1384 (2012); Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010). The R&R 16 correctly applied the proper standard. Therefore, the Court agrees that Petitioner did not 17 satisfy the prejudice requirement. 18 C. Certificate of Appealability. 19 Petitioner argues that the R&R’s recommendation to deny a certificate of 20 appealability should not be accepted because there is disagreement over whether the state 21 court satisfied its fact finding obligations. 22 appealability can be issued only if a petitioner has “made a substantial showing of the 23 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing, when 24 the district court’s decision to dismiss is based on procedure, requires that “jurists of 25 reason would find it debatable whether the district court was correct in its procedural 26 ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is 27 present and the district court is correct to invoke it to dispose of the case, a reasonable 28 jurist could not conclude either that the district court erred in dismissing the petition or -6- Doc. 17 at 11-12. A certificate of 1 that the petitioner should be allowed to proceed further. In such a circumstance, no 2 appeal would be warranted.” Id. 3 Absent special circumstance, the state court does not have a constitutional duty to 4 determine a factual basis for the plea. Rodriguez, 777 F.2d at 528. Because Petitioner 5 did not protest his innocence, a finding of factual basis for the plea was not required. 6 Moreover, even if a finding of factual basis were constitutionally required, the 7 Petitioner’s statements made during the plea colloquy and the grand jury testimony were 8 strong evidence of guilt. Accordingly, the Court accepts the R&R’s recommendation. 9 10 IT IS ORDERED: 1. The R&R (Doc. 16) is accepted in part and modified in part as set forth in this order. 11 12 2. Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied. 13 3. A certificate of appealability is denied. 14 Dated this 23rd day of April, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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