Rojas v. Blades

Filing 29

MEMORANDUM DECISION AND ORDER granting 26 Motion for Summary Judgment; Petitioners case is DISMISSED with prejudice. The Court will not grant a Certificate of Appealability in this case. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

FLAVIO GARCIA ROJAS,
Case No. 1:09-cv-00005-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

RANDY BLADES,
Respondent.

Pending before the Court is Respondent’s Motion for Summary Judgment, filed on
May 23, 2011 (Dkt. 26.) The Clerk of Court sent Petitioner the Notice to Pro Se Litigants
of the Summary Judgment Rule Requirements (Dkt. 27.) The Court has given Petitioner
additional time to file a response (Dkt. 28), but Petitioner has failed to do so.
Accordingly, having reviewed the state court record and briefing of Respondent, the
Court now considers Respondent’s Motion for Summary Judgment.
PROCEDURAL BACKGROUND
Petitioner Flavio Rojas, his girlfriend (Ms. Juarez), and Ms. Juarez’s daughter
(Erika, the victim) lived together during the incidents of lewd conduct that underlie
Petitioner’s conviction. The incidents occurred during the time span of May 2001 through

MEMORANDUM DECISION AND ORDER - 1

April 2003. Erika reported the incidents to her mother and to a neighbor, Desiree Hruska.
The incidents stopped when Ms. Juarez installed a lock on Erika’s door. However, when
Erika failed to lock her door one evening, another incident occurred.
After an investigation, an indictment was filed charging Petitioner with two counts
of lewd conduct with a minor under sixteen and one count of sexual abuse of a child
under the age of 16, and charging Ms. Juarez with failing to report abuse or neglect.
(State’s Lodging A-1 at 6-9.) An amended indictment was filed during trial, changing
some of the dates of the alleged occurrences. (Id. at 74-77.)
Petitioner and Ms. Juarez retained a private attorney, Jon Cox, and they proceeded
to jury trial together. (State’s Lodgings A-1 to A-5.) Petitioner testified at the trial, but
Ms. Juarez did not. Petitioner was found guilty of one count of lewd conduct with a minor
under sixteen and one count of sexual abuse of a child under the age of 16, and Ms.
Juarez was found guilty of failing to report abuse or neglect. (Id. at 83-86.)
Petitioner’s judgment of conviction was entered on July 16, 2004. (State’s Lodging
A-1 at 105-07.) He was sentenced to nine years fixed with nine years indeterminate on the
first count, and five years fixed with five years indeterminate on the second count, with
the sentences running concurrently. (Id.)
Petitioner filed a direct appeal, but it was dismissed pursuant to the stipulation of
the parties. (State’s Lodgings B-2 to B-4.) Petitioner alleges that he did not receive any
information from appellate counsel about why the case was dismissed.
Petitioner also pursued a motion for reduction of sentence, which was filed on
MEMORANDUM DECISION AND ORDER - 2

November 16, 2004. (See reference in State’s Supplemental Lodging, Dkt. 15 at 2.) That
motion was denied on January 11, 2005. (Id.)
Petitioner filed a post-conviction petition, which was denied by the state district
court after an evidentiary hearing. (State’s Lodgings C-1 to C-3.) Petitioner filed an
appeal that was heard by the Idaho Court of Appeals. (State’s Lodgings D-1 to D-4.) The
Idaho Court of Appeals affirmed dismissal of the post-conviction action, although part of
the opinion relies upon a mistake of fact–that the co-defendants were tried
separately–when, in fact, they were tried together. (State’s Lodging D-4 at 6-7.) The
mistake of fact arises from Petitioner’s failure to augment the appellate record with the
trial transcript; the only record before the appellate courts was the post-conviction record.
(Id. at 1n.1.)
A petition for review and a memorandum were filed with the Idaho Supreme
Court, wherein the mistake of fact was not addressed (State’s Lodgings D-5, D-6.) The
petition for review was subsequently denied by the Idaho Supreme Court. (State’s
Lodging D-7.) Petitioner alleges that his appellate counsel never sent him a copy of the
court’s decision when the case was completed.
Petitioner also pursued a second post-conviction action in the state district court
(State’s Lodging E-1), during which time this federal case was stayed. When that action
concluded (State’s Supplemental Lodging, Dkt. 15), this case was re-opened.
Respondent’s Motion for Summary Judgment seeking denial or dismissal of all of
Petitioner’s claims is now at issue.
MEMORANDUM DECISION AND ORDER - 3

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriately granted where “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Federal Rules of Civil Procedure apply to
habeas corpus actions except where application of the rules would be inconsistent with
established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases.
Accordingly, summary judgment motions are appropriate in habeas corpus proceedings
where there are no genuine disputes as to any material facts and the moving party is
entitled to judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81 (1977).
Judicial notice will be taken of the court docket in the underlying state court proceedings.
Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner brings three claims in his Petition for Writ of Habeas Corpus.
Respondent argues that the second and third claim are procedurally defaulted, an issue
that the Court will address first, because procedural default is a preliminary issue.
Respondent also argues that the first claim is subject to dismissal on the merits, which the
Court will address last.

MEMORANDUM DECISION AND ORDER - 4

PROCEDURAL DEFAULT: CLAIMS TWO AND THREE
Petitioner’s second claim is that his trial attorney was ineffective under the Sixth,
Fifth, and Fourteenth Amendments “for failing to call numerous key witnesses to testify”
on Petitioner’s behalf at trial. (Dkt. 1 at 2.) Petitioner’s third claim is that his trial attorney
was ineffective and he was denied his right to due process when trial counsel failed to
advise Petitioner of his right to refuse a psychosexual evaluation at sentencing. (Dkt. 1 at
3.) Respondent argues that both of these claims are procedurally defaulted and subject to
dismissal.
1.

Standard of Law
Habeas corpus law requires that a petitioner “exhaust” his state court remedies

before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a
claim, a habeas petitioner must fairly present it to the highest state court for review in the
manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Unless a petitioner has exhausted his state court remedies relative to a particular claim, a
federal district court may deny the claim on its merits, but it cannot otherwise grant relief
on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can satisfy the exhaustion
requirement by showing that (1) he has “fairly presented” his federal claim to the highest
state court with jurisdiction to consider it, or (2) that he did not present the claim to the
highest state court, but no state court remedy is available when he arrives in federal court
(improper exhaustion). Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations
omitted).
MEMORANDUM DECISION AND ORDER - 5

To exhaust a habeas claim properly, a habeas petitioner must “invok[e] one
complete round of the State’s established appellate review process,” O’Sullivan v.
Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the
alleged constitutional error at each level of appellate review. See Baldwin v. Reese, 541
U.S. 27, 29 (2004). Improperly exhausted claims are deemed “procedurally defaulted.”
Procedurally defaulted claims include those within the following circumstances: (1) when
a petitioner has completely failed to raise a particular claim before the Idaho courts, and it
is now too late to do so; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts, and it is now too late to do so;
or (3) when the Idaho courts have rejected a claim on an independent and adequate state
procedural ground. See Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001)
(quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)).
2.

Second Claim
Respondent argues that Petitioner did not raise in the Idaho Supreme Court the

claim that trial counsel failed to call numerous key witnesses to testify at trial. The only
claim raised in the post-conviction appeal brief was an ineffective assistance of counsel
claim based on a conflict of interest–that trial counsel, Jon Cox, represented both
Petitioner and Ms. Juarez. One of the factual bases for the conflict of interest claim was
the allegation that counsel allegedly failed to call key witnesses that would have been
helpful to Petitioner’s case (State’s Lodging D-1 at 15-17), but Petitioner did not present
that issue as an independent claim to the Idaho Supreme Court. Accordingly, he cannot do
MEMORANDUM DECISION AND ORDER - 6

so here. Thus, the Court concludes that this claim is procedurally defaulted.
3.

Third Claim
Respondent argues that Petitioner raised the third claim in a successive post-

conviction action, but the claim was dismissed by the state district court because it should
have been raised in the first post-conviction action. Petitioner did not appeal dismissal of
the claim (State’s Lodging E-1 through E-5.) As a result, the Court finds that the third
claim is procedurally defaulted, both because the state court found that it was not properly
presented, and because it was never appealed.
4.

Exceptions to Procedural Default Rule
If a petitioner’s claim is procedurally defaulted, the federal district court cannot

hear the merits of the claim unless a petitioner meets one of two exceptions: a showing of
adequate legal cause for the default and prejudice arising from the default; or a showing
of actual innocence, which means that a miscarriage of justice will occur if the claim is
not heard in federal court. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Schlup v.
Delo, 513 U.S. 298, 329 (1995).
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
MEMORANDUM DECISION AND ORDER - 7

constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
If a petitioner cannot show cause and prejudice, he can still bring the claim in a
federal habeas petition if he demonstrates that failure to consider the claim will result in a
“fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494 (1991). A
miscarriage of justice means that a constitutional violation has probably resulted in the
conviction of someone who is actually innocent. Murray v. Carrier, 477 U.S. 478, 496
(1986).
To show a miscarriage of justice, Petitioner must make a colorable showing of
factual innocence, Herrera v. Collins, 506 U.S. 390, 404 (1993); Coley v. Gonzales, 55
F.3d 1385, 1387 (9th Cir. 1995), supporting his allegations of constitutional error with
new reliable evidence that was not presented at trial, Schlup v. Delo, 513 U.S. 298, 324
(1995). For example, types of evidence “which may establish factual innocence include
credible declarations of guilt by another, see Sawyer v. Whitley, 505 U.S. 333, (1992),
trustworthy eyewitness accounts, see Schlup, 513 U.S. at 331, and exculpatory scientific
evidence.” Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996).
Petitioner has failed to argue that either exception applies to excuse his procedural
default. No facts supporting cause and prejudice or a miscarriage of justice are evident
from the record. Accordingly, Claims Two and Three will be dismissed with prejudice.
MERITS OF FIRST CLAIM
Petitioner’s first claim is that counsel had a conflict of interest when he
represented both Petitioner and Ms. Juarez. (Dkt. 1 at 2.) Because this claim was properly
MEMORANDUM DECISION AND ORDER - 8

exhausted, the Court reviews the merits of the claim.
1.

Standard of Law Governing Habeas Corpus Procedure
Federal habeas corpus relief is available for claims adjudicated on the merits in a

state court judgment only when the federal court determines that the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). However, under § 2254(d), as amended by the Anti-terrorism and
Effective Death Penalty Act (AEDPA), relief is further limited to instances where the
state-court adjudication of the merits:
1.

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

2.

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding.

In other words, the writ can be granted only when the petitioner shows a
federal violation, as specified in § 2254(a), and either a “contrary” or unreasonable
application of federal law or an unreasonable determination of the facts by the
state court, as specified in § 2254(d). See, e.g., Ben-Yisrayl v. Buss, 540 F.3d 542,
550 (7th Cir. 2008), cert. denied, 129 S. Ct. 2890 (2009) (“Despite a conclusion
that the Indiana Supreme Court's finding was unreasonable, Ben-Yisrayl still must
still establish that he is entitled to habeas relief”); Harrison v. McBride, 428 F.3d
652, 665 (7th Cir. 2005) (“[E]ven when the AEDPA standard does not
apply—either because the state court's opinion was unreasonable or because the
MEMORANDUM DECISION AND ORDER - 9

state judiciary did not address the constitutional claim—[a] prisoner still must
establish an entitlement to the relief he seeks”).
In this case, there is an obvious factual error underlying the state court
opinion. The United States Supreme Court has determined that a clear factual error
“reflects ‘an unreasonable determination of the facts’” under § 2254(d)). Wiggins
v. Smith, 539 U.S. 510, 528 (2003); see also Taylor v. Maddox, 366 F.3d 992 (9th

Cir. 2004) (“[W]here the state courts plainly misapprehend or misstate the record
in making their findings, and the misapprehension goes to a material factual issue
that is central to petitioner’s claim, that misapprehension can fatally undermine the
fact-finding process, rendering the resulting factual finding unreasonable.”) Id. at
1001 (citing Wiggins). When a state court adjudication was based on an
unreasonable determination of fact, the reviewing court is to “consider the
petitioner’s related claim de novo.” Maxwell v. Roe, 628 F.3d 486, 494-95 (9th
Cir. 2010). See also Jones v. Walker, 540 F.3d 1277 (11th Cir. 2008) (en banc).1

1

The Jones Court reasoned:

[W]hen a state court’s adjudication of a habeas claim results in a decision that is based on
an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding, this Court is not bound to defer to unreasonably-found facts or to the
legal conclusions that flow from them.... Because the Georgia Supreme Court
unreasonably determined the facts relevant to Jones’ Sixth Amendment claim, we do not
owe the state court's findings deference under AEDPA. We therefore apply the
pre-AEDPA de novo standard of review to Jones’ habeas claims. ”
540 F.3d at 1288 n.5 (quotations, citations, and alterations omitted).

MEMORANDUM DECISION AND ORDER - 10

2.

Standard of Law Governing Merits
A criminal defendant has the right to be represented by conflict-free counsel

under the Sixth Amendment. Wood v. Georgia, 450 U.S. 261, 271 (1981). A
“possible conflict of interest” is created “that could prejudice either or both
clients” when the same counsel represent two defendants in criminal actions
arising from the same set of facts. Burger v. Kemp, 483 U.S. 776 (U.S. 1987).
However, it is settled that “[r]equiring or permitting a single attorney to represent
codefendants, often referred to as joint representation, is not per se violative of
constitutional guarantees of effective assistance of counsel.” Id. at 783 (quoting
Holloway v. Arkansas, 435 U.S. 475, 482 (1978)). To the contrary, “[i]n many
cases, a common defense gives strength against a common attack.” Id. (internal
citations and quotation marks omitted).
While the provision of separate trials for jointly-represented co-defendants
“significantly reduce[s] the potential for a divergence of their interests,” Cuyler v.
Sullivan, 446 U.S. 335, 347 (1980), the United States Supreme Court has never
held that separate trials are required to avoid a conflict of interest.
The United States Supreme Court has made it clear that the mere
“possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler,
446 U.S. at 350. When a conflict is shown, prejudice is presumed only when: (1)
“the defendant demonstrates that counsel actively represented conflicting
interests”; and (2) “an actual conflict of interest adversely affected his lawyer’s
MEMORANDUM DECISION AND ORDER - 11

performance.” Burger, 483 U.S. at 783 (quoting Strickland v. Washington, 466
U.S. 668, 692 (1984) (citation and quotations marks omitted), and citing Cuyler,
446 U.S. at 348).
In Mickens v. Taylor, 535 U.S. 162, 172-73 (2002), the Supreme Court
rejected the proposed rule of automatic reversal of a conviction where there existed
a conflict that did not affect counsel’s performance. Instead, that Court emphasized
that “an actual conflict of interest” meant precisely a conflict that affected
counsel’s performance–as opposed to a mere theoretical division of loyalties.” Id.
at 171.
Stated another way, a defendant who brings an attorney conflict-of-interest
claim must “show that potential conflicts impermissibly imperil[ed] his right to a
fair trial.” Cuyler, 446 U.S. at 348 (internal citations omitted). The Cuyler Court
provided the following example of a conflict of interest that adversely affected the
defendant’s trial:
In Glasser v. United States, [315 U.S. 60 (1942)], for example, the
record showed that defense counsel failed to cross-examine a
prosecution witness whose testimony linked Glasser with the crime
and failed to resist the presentation of arguably inadmissible
evidence. Id., at 72-75, 62 S.Ct. at 465-467. The Court found that
both omissions resulted from counsel’s desire to diminish the jury’s
perception of a codefendant’s guilt. Indeed, the evidence of
counsel’s “struggle to serve two masters [could not] seriously be
doubted.” Id., at 75, 62 S.Ct., at 467. Since this actual conflict of
interest impaired Glasser’s defense, the Court reversed his
conviction.

MEMORANDUM DECISION AND ORDER - 12

446 U.S. at 348-49.2
3.

Discussion
In Petitioner’s post-conviction appeal case, the Idaho Court of Appeals

misapprehended a fact. As noted above, the Idaho Court of Appeals mistakenly
believed that Petitioner and Ms. Juarez were not tried together, when, in fact, they
had one joint trial. (State’s Lodging D-4 at 1, 6.) As the standard of law demands,
when a misapprehension of a material fact in the state court record by the state
reviewing court is clear, it amounts to an unreasonable finding of fact under
§ 2254(d)(2), and, therefore, the Court reviews the legal question de novo in light
of the true facts presented in the state court record.
The Court will first look at the question of whether there was a possible
conflict of interest between Petitioner and Ms. Juarez. While they both were
charged with crimes arising from the same set of facts–one acting improperly, and
the other refusing to report the crime–each could have provided evidence to
damage the other’s defense. The Court concludes, therefore, that a theoretical
conflict of interest existed.
The second question is whether the joint representation actually affected the
adequacy of trial counsel’s representation of Petitioner. In other words, what did
trial counsel do, and were the actions taken the result of the attorney’s conflicted

2

Glasser was later superseded on other grounds not relevant here. See Fed. R. Evid. 104;
Bourjaily v. United States, 483 U.S. 171 (1987).
MEMORANDUM DECISION AND ORDER - 13

loyalty?
The relationships existing among Petitioner, Ms. Juarez, and Erika (the
child/victim) are important to the second question of what counsel did and why.
The record shows that the defendants put on a united front and pursued the defense
that Erika–Petitioner’s step-daughter and Ms. Juarez’s daughter–lied about having
been sexually molested by Petitioner. Petitioner and Ms. Juarez had a husbandwife type relationship that spanned approximately 10 years, while Erika, who had
been raised by her aunt in another state, had only recently come to live with her
mother (Ms. Juarez) and Petitioner. After the incidents, Erika returned to live with
her aunt, who was in the process of adopting her at the time of trial. (A-3 at 128.)
In summary, the facts showed that Petitioner and Ms. Juarez had a strong and
lasting relationship with each other, while Erika had a short, temporary
relationship with Ms. Juarez and Petitioner.
Both defendants chose to retain and proceed to trial with the same counsel.3
It is undisputed that Ms. Juarez wanted to testify on behalf of herself and
Petitioner. Counsel advised her not to testify on behalf of herself or Petitioner.
(State’s Lodgings D-4 at 5; C-2 at 5, 20-21, 45-46.) In the Affidavit of post-

3

Ms. Juarez testified at the post-conviction hearing that trial counsel advised her of the potential
conflict of interest, that she understood the conflict, and that she chose to go forward in the face of such
knowledge. (State’s Lodging C-2 at 18-19.) Rojas testified at the post-conviction hearing, but his
testimony did not reveal whether he was advised of and waived the potential conflict of interest. (Id. at
36-41.) Because it is unknown what Rojas was told and what he waived, the Court does not consider this
information or lack of it in its analysis.
MEMORANDUM DECISION AND ORDER - 14

conviction counsel Dennis Sallaz, he reported that Ms. Juarez said that trial
counsel advised against testifying for herself and Petitioner because she would
have no credibility, because she was the wife and a co-defendant. (State’s Exhibit
C-1 at 42.)
Particularly at issue is whether counsel’s advice to Ms. Juarez to refrain
from testifying for Petitioner was really for the benefit of Ms. Juarez’s case and
whether that advice adversely affected trial counsel’s performance in Petitioner’s
case.4 In the post-conviction application evidentiary hearing, both the trial attorney
and Ms. Juarez testified that the trial attorney told Ms. Juarez not to testify on
Petitioner’s behalf because it was not in Petitioner’s best interest. (State’s
Lodgings D-4 at 5; C-2 at 5, 20-21, 45-46.) The trial attorney specifically testified:
Q.

The other incidents of where a child may have lied, if
discussed with you, would you have decided whether
that type of evidence would have been admissible or
not at trial before you tried to admit it at trial?

A.

Well, I mean, you’re always trying to make a
determination of whether or not you’re going to be
objected to and do you want to bring up the idea of the
mother calling the daughter a liar. I mean, I thought
that was fraught with somewhat potentially negative
against both the parents, but I knew the issue was
going to be discussed. But I didn’t–I don’t know if I’ve

4

For example, whether Ms. Juarez actually “reported” the alleged child abuse to authorities was
at the heart of her own criminal case. Had she chosen to testify, the cross-examination of her may have
revealed that she did not, in fact, report the child abuse–destroying her defense. Counsel had planned to
show the “reporting” by calling Desiree Hruska, Ms. Juarez’s best friend, who testified that Ms. Hruska
called the Department of Health and Welfare, and Ms. Juarez did, in fact, speak to personnel at that time.
(A-3 at 149; C-2 at 45.)
MEMORANDUM DECISION AND ORDER - 15

answered your question or not.
Q.

Whenever a client meets with you and tells you their
array of information, do you have to make a judgment
about what type of information is admissible or not
admissible, just based on what the content is?

A.

Obviously.

Q.

And so where your client’s been provided [sic] information to
you that would have been inadmissible, at any rate, just
simply about previous lies, would you take that into
consideration as a trial strategy as if you would even attempt
to introduce that?

A.

Well, I typically don’t try to introduce evidence that I know if
going to be objected to and potentially sustained. Again, I
thought the area of her past lies was going to be covered, so I
don’t know that I wanted to beat a dead horse about that.

(State’s Lodging C-2, at 52-53.)
Counsel’s testimony that he thought the testimony of the mother could have
been construed in a negative way by the jury is reasonable and appropriate in the
face of the particular relationships described above. The co-defendants not only
had a long, strong history together that the victim did not share; but, after the
incidents, the victim’s relationship with the co-defendants was severed, and the codefendants continued their relationship. The jury could have attributed a bias,
prejudice, or lack of “credibility” to Ms. Juarez and expanded that negative view to
include Petitioner as Ms. Juarez’s close family member, had Ms. Juarez testified in
favor of Petitioner and against her own daughter.
Counsel’s decision did not adversely affect his performance in Petitioner’s
MEMORANDUM DECISION AND ORDER - 16

case. Rather, counsel determined that there were better ways of introducing the
evidence that the victim had a reputation for being untruthful, and effectively
introduced that evidence at trial.
Ms. Hruska, the neighbor, testified that, when the child reported the
incidents, Ms. Hruska had a hard time believing the child because “she’s been
lying a lot lately.” (Id. at 162.) Further, the Court allowed Hruska’s testimony to
stand, over the State’s objection, that: “I have witnessed her [the child] lying to her
mother.” (Id. at 163.)
In addition, trial counsel skillfully cross-examined the child about her
reputation for untruthfulness:
Q.

Have you ever lied about something as important as,
say, something about suicide?

A.

Have I ever lied about something like that? Not that–

(State’s Lodging A-3 at 305.)
Q.

Erika, do you have a reputation among your family
members or friends for not being truthful about things?

A.

What are you trying to say?

The Court:

He is asking her if she’s aware of her reputation among
family members and friends?

A.

Am I aware of – if people know that I’m a liar? Is that
what you said?

Q.

Yeah, that you have a reputation of maybe not always
telling the truth?

MEMORANDUM DECISION AND ORDER - 17

A.

I don’t know.

(Id. at 307-08.)
It is also evident, both from the trial transcript and from trial counsel’s
testimony at the post-conviction evidentiary hearing, that counsel was keenly
aware that he was walking a fine line between admissible “general reputation of
character” evidence and inadmissible specific “bad acts” evidence. The evidence
trial counsel presented and the manner in which he handled objections show his
awareness and skill in this area.
Petitioner presented testimony at the post-conviction evidentiary hearing
that Ms. Juarez could have testified at trial about her daughter’s instances of being
untruthful, including laying foundation for school records regarding her daughter’s
untruthfulness. (State’s Lodging C-2, pp. 5-7.) Petitioner argues that trial counsel
disregarded this evidence that would have helped Petitioner’s defense because
counsel believed it would have harmed Ms. Juarez’s defense.
To the contrary, trial counsel understood that particular instances of
untruthful conduct were inadmissible to show that the victim acted in conformity
with her prior conduct by presently lying about the sexual molestation. Ms.
Juarez’s testimony about the school records and attendant exhibits likely were
inadmissible because they concerned only a particular event. The school records
provided by Petitioner with his post-conviction application include a note from
Ellen F. Kerstein, counselor, that addresses a suicide attempt the victim apparently
MEMORANDUM DECISION AND ORDER - 18

fabricated about the same time period:
10-8-02
Erika She said he has mood swings but does not want to kill herself.
Erika said she was just joking when she told her friend she tried to
kill herself. Erika said she made a bet with her cousin to tell someone
a lie and then tell the person the truth on Halloween.
10-14-02
Erika said she feels bad that she told her friend she would kill
herself as a joke. She said she would not do that again.

(State’s Lodging C-2 at 54-55.)
On October 7, 2002, a “Suicide Prevention Form” was completed by the
school regarding this incident. (Id. at 55.) Also on that same date, a letter regarding
referrals for possible counselors for Erika was prepared. (Id. at 56.) There are no
school records in the post-conviction record showing that the school was
concerned about multiple incidents of Erika lying, such that school personnel or
the school records would have pertained to admissible “general reputation for
truthfulness” evidence. Thus, Petitioner has not shown that counsel ignored either
tangible school records or Ms. Juarez’s supporting testimony that would have
amounted to admissible general character evidence.
4.

Conclusion
Assuming that a theoretical conflict existed because of the dual

MEMORANDUM DECISION AND ORDER - 19

representation, it did not rise to an actual conflict of interest for Sixth Amendment
purposes because there is no evidence that counsel’s loyalties were divided or that
his performance was otherwise affected. It is clear that counsel had a strategy and
that he had reasons applicable to Petitioner (not solely Ms. Juarez) that supported
his advice that Ms Juarez not testify in Petitioner’s behalf. It is reasonable to think
that the jury could have drawn a negative inference about both parents if the
mother came right out and challenged the veracity of the daughter/victim, given
the unique relationships of the involved family members. Trial counsel effectively
used other witnesses and the victim herself to bring out the victim’s reputation for
being dishonest, without risking the damage that might have occurred if both
parents would have combined against the child to attack her credibility on the
stand.
The Court agrees with Respondent that Petitioner has failed to demonstrate
that some plausible defense strategy or tactic might have been pursued but was not
because of the conflict of interest. Accordingly, under a de novo standard of
review, the Court concludes that federal habeas corpus relief is not warranted for
failure to show that a constitutional violation occurred and failure to show that a
conflict of interest impermissibly imperiled his right to a fair trial. The Petition for
Writ of Habeas Corpus will be denied and dismissed with prejudice.
REVIEW OF THE CLAIMS AND THE COURT’S DECISION
FOR PURPOSES OF CERTIFICATE OF APPEALABILITY

MEMORANDUM DECISION AND ORDER - 20

In the event Petitioner files a notice of appeal from the Order and Judgment
in this case, and in the interest of conserving time and resources, the Court now
evaluates the claims within the Petition for suitability for issuance of a certificate
of appealability (COA), which is required before a habeas corpus appeal can
proceed. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Rule 11(a), Rules Governing Section 2254 Cases.
A COA will issue only when a petitioner has made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court
has explained that, under this standard, a petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal citation and punctuation omitted).
When a court has dismissed a petition or claim on procedural grounds, in
addition to showing that the petition “states a valid claim of the denial of a
constitutional right,” as explained above, the petitioner must also show that
reasonable jurists would find debatable whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484. When a court has dismissed the petition
or claim on the merits, the petitioner must show that “reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Id.
at 484. The COA standard “requires an overview of the claims in the habeas
MEMORANDUM DECISION AND ORDER - 21

petition and a general assessment of their merits,” but a court need not determine
that the petitioner would prevail on appeal. Miller-El, 537 U.S. at 336.
Here, the Court has dismissed two of Petitioner’s claims on procedural
grounds, and denied one on the merits. The Court finds that additional briefing on
the COA is not necessary. Having reviewed the record again, the Court concludes
that reasonable jurists would not find debatable the Court’s decision on the
procedural issues and the merits of the claims raised in the Petition and that the
issues presented are not adequate to deserve encouragement to proceed further. As
a result, the Court declines to grant a COA on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth
Circuit, Petitioner must file a notice of appeal in this Court, and simultaneously
file a motion for COA in the Ninth Circuit Court of Appeals, pursuant to Federal
Rule of Appellate Procedure 22(b), within thirty (30) days after entry of this
Order.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Judgment (Dkt. 26) is
GRANTED. Petitioner’s case is DISMISSED with prejudice.

2.

The Court will not grant a Certificate of Appealability in this case. If
Petitioner chooses to file a notice of appeal, the Clerk of Court is
ordered to forward a copy of this Order, the record in this case, and

MEMORANDUM DECISION AND ORDER - 22

Petitioner’s notice of appeal, to the United States Court of Appeals
for the Ninth Circuit.

DATED: February 6, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 23