Gonzalez v. Benedetti et al

Filing 24

ORDER denying 7 Petition for Writ of Habeas Corpus. The clerk shall enter judgment accordingly. A certificate of appealability is DENIED. Signed by Judge Howard D. McKibben on 3/6/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GABRIEL GONZALEZ,

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Petitioner,

Case No. 3:10-cv-00695-HDM-VPC
ORDER

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vs.

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JIM BENEDETTI, et al.,

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Respondents.

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Before the court are the petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 (#7), respondents’ answer (#21), and

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petitioner’s reply (#22).

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warranted, and the court denies the petition.

The court finds that relief is not

Procedural History

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In state district court, petitioner was charged with one count

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of trafficking in a controlled substance and one count of

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conspiracy to trafficking in a controlled substance.

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After a trial, the jury found him guilty of trafficking in a

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controlled substance.

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amended judgment of conviction on January 10, 2007.

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Petitioner appealed.

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2008.

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Ex. 51 (#11).

Ex 37 (#11).

Ex. 29 (#10).

The trial court entered its
Ex. 42 (#11).

The Nevada Supreme Court affirmed on March 6,

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Petitioner then filed in state district court a post-

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conviction habeas corpus petition on September 18, 2008.

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(#12).

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10, 2009.

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Court affirmed on September 10, 2010.

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habeas corpus petition (#7) followed.

The state district court denied the petition on November
Ex. 64 (#12).

Petitioner appealed.

The Nevada Supreme

Ex. 71 (#12).

The federal

Facts

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Ex. 55

Clarence Andreozzi was facing charges of possession of drug
paraphernalia.

He agreed with the police to arrange a controlled

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purchase of cocaine, so that the police could arrest a supplier of

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the drug.

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him.

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In return, the police would drop the charges against

Andreozzi contacted Marrio Williams and arranged the

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transaction.

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Williams said that petitioner was the source of the cocaine.

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Eventually, the two agreed that Andreozzi would meet Williams and

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petitioner at a parking lot in Lovelock, Nevada, for the

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transaction.

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In the telephone conversations between the two,

The meeting occurred as planned.

The police were near, but

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hidden, and they could not see the transaction themselves.

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Andreozzi was wearing a hidden transmitter, but it did not work

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very well, and the recording provided no useful information.

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Williams testified that petitioner drove Williams’ car from Reno,

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Nevada, to Lovelock.

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girlfriend, Jannet Ordaz, accompanied them, and she sat in the

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front passenger seat.

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Andreozzi approached the car, handed pre-recorded purchase money to

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petitioner, and received one ounce of cocaine in return.

Williams sat in the back seat.

Petitioner’s

Andreozzi and Williams testified that

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Williams

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also testified that when petitioner took out the cocaine to give to

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Andreozzi, petitioner dropped the bag.

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and handed it back to petitioner, who gave it to Andreozzi.

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Williams picked the bag up

After Andreozzi walked away from the car, petitioner started

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to drive away.

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lot.

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recovered the pre-recorded purchase money from petitioner.

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also found several grams of cocaine in Ms. Ordaz’s purse.

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The police intercepted petitioner in the parking

They arrested petitioner, Williams, and Ordaz.

They
They

Williams had not been working with the police before the
arrest, but he agreed to provide testimony against petitioner.
Ordaz ultimately pleaded no contest to trafficking in a
controlled substance.

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Standard of Review

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Congress has limited the circumstances in which a federal

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court can grant relief to a petitioner who is in custody pursuant

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to a judgment of conviction of a state court.

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An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(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

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(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.

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28 U.S.C. § 2254(d).

“By its terms § 2254(d) bars relitigation of

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any claim ‘adjudicated on the merits’ in state court, subject only

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to the exceptions in §§ 2254(d)(1) and (d)(2).”

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Richter, 131 S. Ct. 770, 784 (2011).
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Harrington v.

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Federal habeas relief may not be granted for claims subject to
§ 2254(d) unless it is shown that the earlier state court’s
decision “was contrary to” federal law then clearly
established in the holdings of this Court, § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 412 (2000); or that it
“involved an unreasonable application of” such law,
§ 2254(d)(1); or that it “was based on an unreasonable
determination of the facts” in light of the record before the
state court, § 2254(d)(2).

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Richter, 131 S. Ct. at 785.

“For purposes of § 2254(d)(1), ‘an

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unreasonable application of federal law is different from an

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incorrect application of federal law.’”

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“A state court’s determination that a claim lacks merit precludes

Id. (citation omitted).

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federal habeas relief so long as ‘fairminded jurists could

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disagree’ on the correctness of the state court’s decision.”

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(citation omitted).

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Id.

[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity.
The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.

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Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

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Under § 2254(d), a habeas court must determine what arguments
or theories supported or, as here, could have supported, the
state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of this Court.

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Richter, 131 S. Ct. at 786.

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As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.

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Id., at 786-87.

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Discussion

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Grounds 1, 2 and 3 are claims of error in the trial court.

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Petitioner did not present these claims on direct appeal.

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present the claims in his state habeas corpus petition.

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district court and the Nevada Supreme Court construed these claims

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as claims of ineffective assistance of counsel.

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court presumes that the state courts considered the merits of the

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underlying claims.

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(2013).

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He did
The state

Nonetheless, the

Johnson v. Williams, 133 S. Ct. 1088, 1094

Indeed, the state courts’ analyses of whether petitioner

suffered any prejudice are analyses on the merits of the claims.
Ground 1 is a claim that petitioner is actually innocent.

On

this issue, the Nevada Supreme Court held:
Fourth, appellant claimed that his appellate counsel was
ineffective for failing to argue that he was innocent and for
raising only frivolous arguments. Appellant failed to
demonstrate that he was prejudiced. A review of the record
reveals sufficient evidence to establish appellant’s guilt
beyond a reasonable doubt, Leonard v. State, 114 Nev. 1196,
1209-10, 969 P.2d 288, 297 (1998), thus he failed to
demonstrate that a claim of innocence would have had a
reasonable likelihood of success on appeal. Further, he
failed to demonstrate that he was prejudiced by his appellate
counsel’s failure to raise any additional claims. Therefore,
the district court did not err in denying this claim.

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Ex. 71, at 4 (#12).

The Supreme Court of the United States has not

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determined whether a free-standing claim of actual innocence exists

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in federal habeas corpus.

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Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2321 (2009); Herrera v.

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Collins, 506 U.S. 390, 398-417 (1993)).

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established federal law on the issue, the Nevada Supreme Court’s

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determination cannot be contrary to, or an unreasonable application

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of, clearly established federal law.

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70, 77 (2006).

District Attorney's Office for Third

Without any clearly

Carey v. Musladin, 549 U.S.

Ground 1 is without merit.
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Ground 2 is a claim that the prosecution knowingly used

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perjured testimony to convict petitioner.

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U.S. 264, 269-70 (1959); Pyle v. Kansas, 317 U.S. 213, 216 (1942);

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Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam).

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issue, the Nevada Supreme Court held:

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Napue v. Illinois, 360

On this

Third, appellant claimed that his appellate counsel was
ineffective for failing to argue that the State knowingly used
perjured testimony to convict him. Appellant failed to
demonstrate that his appellate counsel’s performance was
deficient. Nothing in the record supports appellant’s claim
that the State knew two witnesses committed perjury.
Appellant’s bare and naked claims are insufficient to
demonstrate that he is entitled to relief for this claim.
Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225
(1984). Therefore, the district court did not err in denying
this claim.
Ex. 71, at 4 (#12).
Petitioner argues that at sentencing the trial judge stated

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that Williams and Andreozzi committed perjury.

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judge actually said:

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This is what the

What I am telling you is that the evidence before this Court,
and I take judicial notice of everything that came out in the
trial, is that you were involved with a group of people in
Reno. One of those, who happened to live in Battle Mountain,
he got caught with drugs. Within the drug world, there are no
loyalties. It’s a world of deception and lies and cheating
and no loyalty. The only loyalty that you have are the people
sitting in the courtroom, your family.

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Where are your friends? Where are your friends that you were
involved with the drug dealing and all that? I don’t see them
in the in courtroom. And they will never be here. They
abandon—they abandon those who get caught, because they know
that they are next and that they could be in that same
position. So the people that you came here with, um, you may
still consider your friends. But I’m telling you the way this
entire system, and it’s a pretty ugly system, works. It’s
like one person gets caught and it’s like tag. They catch the
next person and clear on down the line. And you were it. And
that’s what it is today.

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Ex. 40, at 37-38 (#11).

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out of context.

Petitioner takes the judge’s statements

The judge did not state that Williams and
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Andreozzi testified falsely.

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aphorism that there is no honor among thieves.

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The judge expanded upon the old

Furthermore, petitioner has not proven that the testimony in

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question was perjured.

Petitioner has shown minor inconsistencies

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between the testimony of Williams and the testimony of Andreozzi,

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but minor inconsistencies occur often when two different people

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testify about their own recollections of the same event.

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than petitioner’s own statement that Andreozzi and Williams

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perjured themselves, nothing in the record supports that argument.

Other

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Even if petitioner testified at trial to a different version of

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events, that testimony would not prove that Andreozzi and Williams

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perjured themselves.

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knew before the transaction that Williams was not the drug dealer,

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but that he was the facilitator between Andreozzi and petitioner.

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The officers also testified that Williams was not working for them,

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and that Williams agreed to testify against petitioner only after

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Williams was arrested.

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would have to be evidence of a conspiracy between Williams and

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Andreozzi to frame petitioner for a crime.

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such a conspiracy.

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reasonably could have determined that the prosecution did not know

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that it was using perjured testimony; it also reasonably could have

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determined that petitioner had not proven that the testimony was

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perjured.

Furthermore, the officers testified that they

For petitioner’s claim to be true, there

There is no evidence of

Consequently, the Nevada Supreme Court

Ground 2 is without merit.

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In ground 3, petitioner claims that the third amended

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information did not give petitioner notice that the prosecution

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would pursue the theory of aiding and abetting for the charge of

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trafficking in a controlled substance.

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Supreme Court held:

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On this issue, the Nevada

First, appellant claimed that his trial counsel was
ineffective for failing to argue that the State did not
provide notice of criminal liability under an aider and
abettor theory. Appellant cannot demonstrate that his trial
counsel was deficient because, in the third amended
information, the State charged appellant with trafficking in a
controlled substance and listed NRS 195.020, which states that
one who aids or abets shall be punished as a principal.
Appellant failed to demonstrate prejudice because the evidence
showed that he personally sold the cocaine to the police
informant. Therefore, the district court did not err in
denying this claim. . . .

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Second, appellant claimed that his appellate counsel was
ineffective for failing to argue that the State did not
provide notice of criminal liability under an aider and
abettor theory. As discussed previously, the State charged
appellant as an aider and abettor in the third amended
information. Accordingly, appellant failed to demonstrate
that the underlying issue had a reasonable likelihood of
success on appeal. Therefore, the district court did not err
in denying this claim.

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Ex. 71, at 2, 4 (#12).

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does give petitioner notice of the theory of aiding and abetting.

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Ex. 29, at 1 (#10).

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Nevada Supreme Court’s decision was not contrary to, or an

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unreasonable application of, clearly established federal law.

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Count 1 of the third amended information

Ground 3 has no support in the record.

The

Ground 4 contains three claims of ineffective assistance of

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trial counsel.

“[T]he right to counsel is the right to the

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effective assistance of counsel.”

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759, 771 & n.14 (1970).

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assistance of counsel must demonstrate (1) that the defense

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attorney’s representation “fell below an objective standard of

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reasonableness,” Strickland v. Washington, 466 U.S. 668, 688

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(1984), and (2) that the attorney’s deficient performance

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prejudiced the defendant such that “there is a reasonable

McMann v. Richardson, 397 U.S.

A petitioner claiming ineffective

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probability that, but for counsel’s unprofessional errors, the

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result of the proceeding would have been different,” id. at 694.

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“[T]here is no reason for a court deciding an ineffective

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assistance claim to approach the inquiry in the same order or even

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to address both components of the inquiry if the defendant makes an

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insufficient showing on one.”

Id. at 697.

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Strickland expressly declines to articulate specific

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guidelines for attorney performance beyond generalized duties,

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including the duty of loyalty, the duty to avoid conflicts of

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interest, the duty to advocate the defendant’s cause, and the duty

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to communicate with the client over the course of the prosecution.

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466 U.S. at 688.

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duties so exhaustively as to give rise to a “checklist for judicial

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evaluation of attorney performance. . . .

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would interfere with the constitutionally protected independence of

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counsel and restrict the wide latitude counsel must have in making

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tactical decisions.”

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The Court avoided defining defense counsel’s

Any such set of rules

Id. at 688-89.

Review of an attorney’s performance must be “highly

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deferential,” and must adopt counsel’s perspective at the time of

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the challenged conduct to avoid the “distorting effects of

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hindsight.”

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“indulge a strong presumption that counsel’s conduct falls within

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the wide range of reasonable professional assistance; that is, the

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defendant must overcome the presumption that, under the

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circumstances, the challenged action ‘might be considered sound

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trial strategy.’”

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Strickland, 466 U.S. at 689.

A reviewing court must

Id. (citation omitted).

The Sixth Amendment does not guarantee effective counsel per
se, but rather a fair proceeding with a reliable outcome.
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See

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Strickland, 466 U.S. at 691-92.

See also Jennings v. Woodford, 290

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F.3d 1006, 1012 (9th Cir. 2002).

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that counsel fell below an objective standard of reasonableness

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alone is insufficient to warrant a finding of ineffective

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assistance.

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sub-par performance prejudiced the defense.

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at 691-92.

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the attorney’s challenged conduct, the result of the proceeding in

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question would have been different.

Consequently, a demonstration

The petitioner must also show that the attorney’s
Strickland, 466 U.S.

There must be a reasonable probability that, but for

Id. at 694.

“A reasonable

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probability is a probability sufficient to undermine confidence in

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the outcome.”

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Id.

Establishing that a state court’s application of Strickland
was unreasonable under § 2254(d) is all the more difficult.
The standards created by Strickland and § 2254(d) are both
“highly deferential,” . . . and when the two apply in tandem,
review is “doubly” so . . . . The Strickland standard is a
general one, so the range of reasonable applications is
substantial. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.

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Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citations

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omitted).

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The court uses respondents’ designations for the claims of

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ineffective assistance.

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counsel failed to question Williams or Andreozzi about their prior

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criminal records.

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In ground 4(1), petitioner argues that

On this issue, the Nevada Supreme Court held:

Third, appellant claimed that his trial counsel was
ineffective for failing to impeach M. Williams’ testimony with
his criminal history. Appellant cannot demonstrate that his
trial counsel’s performance was deficient because counsel
attempted to question the witness in this area, but the
district court precluded questioning of this nature due to the

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age of the conviction. See NRS 50.095(2). Therefore, the
district court did not err in denying this claim.

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Ex. 71, at 2-3 (#12).

The transcript shows that counsel did try to

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cross-examine Williams about a prior felony conviction.

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court did not allow the questioning because the prior conviction

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was too old to qualify under Nev. Rev. Stat. § 50.095.

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37-40 (#11).

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cross-examined Andreozzi on the one item that would be the most

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impeaching:

Counsel could have done nothing else.

The trial

Ex. 34, at

Counsel also

Andreozzi’s deal with police not to be charged in

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exchange for setting up the transaction.

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court agrees with respondents that petitioner has not presented any

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evidence that Andreozzi had a criminal history that would have been

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admissible pursuant to Nev. Rev. Stat. § 50.095.

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Supreme Court applied Strickland reasonably.

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Ex. 33, at 54 (#11).

The

The Nevada

In ground 4(2), petitioner claims that counsel failed to call

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Janet Ordaz to testify on petitioner’s behalf.

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Nevada Supreme Court ruled:

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On this issue, the

Second, appellant claimed that his trial counsel was
ineffective for failing to call J. Ordaz to testify because
she could have provided an alibi. Appellant failed to
demonstrate that he was prejudiced. As Ordaz was in the
vehicle with appellant during the drug transaction and
appellant was seen by numerous police officers participating
in the sale of cocaine, appellant failed to demonstrate that
she could have provided an alibi for appellant. Given the
evidence produced at trial, appellant failed to demonstrate a
reasonable probability that the outcome of the trial would
have been different had Ordaz testified at his trial.
Therefore, the district court did not err in denying this
claim.

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Ex. 71, at 2 (#12).

To the extent that petitioner claimed that

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Ordaz could have provided an alibi, the Nevada Supreme Court was
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correct.1

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car.

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However, petitioner alleged in ground 4 of his state habeas corpus

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petition, and he alleges in ground 4 of his federal petition, that

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Ordaz was “an eyewitness and/or alibi witness.”

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Court’s decision does not address counsel’s decision not to call

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Ordaz for her eyewitness testimony of events.

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court did address that contention.

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Police officers found both petitioner and Ordaz in the

Ordaz could not have testified that petitioner was elsewhere.

The Nevada Supreme

The state district

It held:

Here, Petitioner fails to overcome the presumption that trial
counsel’s decision was not based upon prudent trial strategy.
The record demonstrates that Ms. Ordaz was with petitioner
when he provided cocaine to the cooperative source. Upon
arresting Ms. Ordaz and Petitioner, detectives found several
grams of cocaine in Ms. Ordaz’s purse. This discovery
ultimately resulted in Ms. Ordaz being convicted of
Trafficking in a Controlled substance. These facts constitute
reasonable grounds for trial counsel not to call Ms. Ordaz to
testify. Rather than risk the jury imputing Ms. Ordaz’s guilt
to Petitioner, trial counsel made the tactical decision not to
call her to the stand. Accordingly, Petitioner’s trial
counsel did not provide ineffective assistance of counsel.

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Ex. 64, at 5-6 (#12).

The court presumes that the Nevada Supreme

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Court rejected petitioner’s claims for the same reason.

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Williams, 133 S. Ct. at 1094.

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Williams actually was the trafficker, and that the police charged

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the wrong man with the more serious crime.

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have become more difficult if the jury learned that petitioner’s

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girlfriend, not Williams, was in possession of cocaine.

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Consequently, the state-court determination was a reasonable

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application of Strickland.

See

Counsel’s strategy was to argue that

That strategy would

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Perhaps petitioner was using the term “alibi” incorrectly, to
mean that Ordaz would have testified that petitioner was not the
person who sold cocaine to Andreozzi.
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In ground 4(3), petitioner claims counsel did not object to

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the theory of aiding and abetting because the third amended

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information did not put him on notice of that theory.

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Supreme Court determined that this claim lacked merit because the

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third amended information did put petitioner on notice of the

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theory of aiding and abetting.

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Supreme Court’s determination that counsel did not perform

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deficiently was a reasonable application of Strickland.

Ex. 71, at 2, 4 (#12).2

The Nevada

The Nevada

Conclusion

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To appeal the denial of a petition for a writ of habeas

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corpus, Petitioner must obtain a certificate of appealability,

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after making a “substantial showing of the denial of a

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constitutional right.”

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28 U.S.C. §2253(c).

Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy §2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

After reviewing its

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decision, the court concludes that reasonable jurists would not

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find its conclusions to be debatable or wrong.

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issue a certificate of appealability.

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The court will not

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The court has quoted that decision in its discussion of
ground 3, above.

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IT IS THEREFORE ORDERED that the petition for a writ of habeas

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corpus (#7) is DENIED.

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accordingly.

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The clerk of the court shall enter judgment

IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
DATED: March 6, 2014.

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______________________________________
HOWARD D. MCKIBBEN
United States District Judge

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