Villatoro v. LeGrand et al

Filing 39

ORDERED that the amended petition (ECF No. 9 ) is DENIED in its entirety. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Signed by Judge Robert C. Jones on 11/6/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BALMORE ALEXANDER VILLATORO,

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Case No. 3:14-cv-00467-RCJ-WGC

Petitioner,

ORDER

v.
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ROBERT LEGRAND, et al.,
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Respondents.
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Petitioner Balmore Alexander Villatoro’s counseled, amended 28 U.S.C. § 2254

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habeas petition is before the court for disposition of the merits of the remaining grounds

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(ECF No. 9).

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I.

Procedural History and Background

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As set forth in this court’s order granting respondents’ motion to dismiss in part, on

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May 15, 2009, a jury convicted Villatoro of two counts of sexual assault (exhibit 22).1

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The state district court sentenced Villatoro to two terms of ten years to life, to run

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concurrently. Exh. 23. Judgment of conviction was filed on August 4, 2009. Id. The

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Nevada Supreme Court affirmed the convictions on September 29, 2010, and remittitur

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issued on October 27, 2010. Exhs. 28, 29.

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Exhibits referenced in this order are exhibits to petitioner’s first-amended petition, ECF No. 9, and are
found at ECF Nos. 10-13.
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After an evidentiary hearing, the state district court denied Villatoro’s postconviction
petition on June 27, 2013, the Nevada Supreme Court affirmed the denial on July 22,
2014, and remittitur issued on August 18, 2014. Exhs. 40, 41, 46, 47.
On or about September 8, 2014, Villatoro dispatched his federal habeas corpus
petition for mailing (ECF No. 4). This court appointed counsel, and the first-amended
petition was filed on April 9, 2015 (ECF No. 9). On March 4, 2016, this court granted
respondents’ motion to dismiss in part, concluding that ground 2 was unexhausted (ECF
No. 25). Villatoro filed a motion for stay and abeyance, which this court denied (ECF
Nos. 28, 29, 31). Villatoro then filed a declaration of abandonment of ground 2 (ECF
No. 32). Respondents answered grounds 1, 3, and 4 (ECF No. 36), and Villatoro
replied (ECF No. 37).
II.

Legal Standard -- AEDPA Standard of Review
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty

Act (AEDPA), provides the legal standards for this court’s consideration of the petition in
this case:
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
(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.
The AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693-694 (2002). This court’s ability to grant a writ is limited to cases where “there is
no possibility fair-minded jurists could disagree that the state court’s decision conflicts

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with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing
the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the
doubt”) (internal quotation marks and citations omitted).
A state court decision is contrary to clearly established Supreme Court precedent,
within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts
the governing law set forth in [the Supreme Court’s] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [the Supreme
Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
A state court decision is an unreasonable application of clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538
U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause
requires the state court decision to be more than incorrect or erroneous; the state
court’s application of clearly established law must be objectively unreasonable. Id.
(quoting Williams, 529 U.S. at 409).
To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
requires that the federal courts “must be particularly deferential” to state court factual
determinations. Id. The governing standard is not satisfied by a showing merely that the

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state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires
substantially more deference:

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.... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.

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Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393

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F.3d at 972.

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Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. The petitioner bears the
burden of proving by a preponderance of the evidence that he is entitled to habeas
relief. Cullen, 563 U.S. at 181.
III.

Remaining Grounds
a. Prosecutorial Misconduct Claim

Villatoro alleges in ground 1 that the prosecutor committed misconduct in her
opening statement, and the court failed to remedy the error by granting a mistrial or
giving a proposed curative instruction to the jury in violation of his Fifth, Sixth, and
Fourteenth Amendment rights to due process and a fair trial (ECF No. 9, pp. 8-13).
Villatoro argues that the prosecutor improperly and baselessly suggested that Villatoro’s
defense counsel had coached Villatoro’s girlfriend, a key witness, on her trial testimony.
In reviewing prosecutorial misconduct claims, the narrow issue the federal habeas
court may consider is whether there was a violation of due process, not whether there
was misconduct under the court’s broad exercise of supervisorial power. Darden v.
Wainwright, 477 U.S. 168, 181 (1986). It is “not enough that the prosecutors’ remarks
were undesirable or even universally condemned[,] [t]he relevant question is whether
the prosecutor’s comments so ‘infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.
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2005) (quoting Darden, 477 U.S. at 181). The ultimate question before the court is not
whether misconduct denied a fair trial, but whether the state court’s resolution of the
claim was an unreasonable application of clearly established federal law under 28
U.S.C. § 2254(d)(1). Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999).
The trial testimony of both the victim, Tracy Runnels, and Villatoro’s girlfriend, Arlee
Brown, reflected the following. Runnels and Brown were co-workers and went out
drinking together one evening. Exh 18, pp. 32-49; exh. 19, pp. 95-115. They drank
heavily, and Villatoro joined them at some point and was also drinking. Later, Villatoro
drove all three to Runnels’ apartment, but she realized that she did not have her keys.
Runnels tried to call her roommate several times but was unable to reach her. Brown
suggested that Runnels stay the night in Brown and Villatoro’s home. Runnels was very
intoxicated and agreed. They had to stop the car on the way because Runnels felt ill,
and she vomited repeatedly in a casino or gas station bathroom. When they reached
Brown and Villatoro’s home, Runnels vomited at least twice more. Brown or Brown and
Villatoro made up a pull-out sofa bed in the living room, left a wastebasket near Runnels
in case she felt sick, and Runnels passed out on the bed. Brown and Villatoro went to
bed in the master bedroom. Id.
Runnels testified that when she fell asleep or passed out she was wearing a dress
and a sweater. Exh. 18, pp. 50-64. She woke up in the middle of the night because
she felt a sharp pain in her vaginal area and pressure on top of her. The top of her
dress was pulled down, the bottom of her dress was pulled up, and her bra and
underwear were off. She had not removed any of the clothing herself. Villatoro was on
top of her and was having sexual intercourse with her. After she told him to stop about
three times he stopped and put her underwear back on her. Runnels then blacked out
again. She woke up about 7 in the morning and was completely dressed. She thought
maybe it was some strange dream but when she got up her back hurt and she had
genital pain. Runnels woke up Brown to take her home. As they were driving, Runnels

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told Brown that she had a memory of Villatoro in bed with her, but that when she drinks
she has weird dreams and she wasn’t sure if it was a dream. When Runnels got home
she noticed blood on the back of her dress. When she showered she had a strong,
stinging pain in her vaginal area. She called Brown and said she had blood all over her
and she also called her mom to let her know that she thought she might have been
assaulted. Runnels went with her mother to the hospital where she underwent an exam
and spoke with police. Id. On cross-examination Runnels acknowledged that when she
woke up in the morning she did not run, scream, call the police, or tell Brown that
Villatoro had raped her. Id. at 66.
A criminalist at the Washoe County Crime Laboratory testified that Villatoro or any of
his paternal relatives could not be excluded as the source of the DNA from an external
swab of Runnels’ genitalia. Exh. 19, p. 81.
Brown testified that she and Villatoro went to the bedroom, Villatoro wanted to have
sex and Brown refused. Exh. 19, pp. 116-166. She stated that they had a physical
fight; she was kicking and hitting him. Villatoro finally said he would not touch her, and
they went to sleep. Brown said that she did not remember having sex that night, but
that her underwear was on inside out in the morning, and therefore, she assumed that
she and Villatoro must have engaged in some sort of sexual activity that night. Brown
admitted that when she was interviewed by police the next morning she did not tell them
that her underwear was inside out and that she thought maybe she had had sex with
Villatoro. Brown testified that what she told police was that she was mad at Villatoro,
that they had argued and that they had not had sex. She further testified that Runnels
called her later that morning from the hospital and told Brown something about bleeding
and that it had to do with Villatoro. Brown dropped her children off at daycare and
returned home to find Villatoro in the shower. She said this was unusual, that he had
“no reason to jump up and take a shower,” and that he typically would not shower at
that time of day unless he was going to work. Brown then confronted Villatoro. He

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initially denied that anything happened. Then he told Brown that he “went down on”
[had oral sex with] Runnels, and when he realized what he was doing he went to the
bathroom and threw up. Brown admitted that she did not tell that to the police; she
explained that this was because she did not think it was important at the time. Id.
A police officer who went to Brown and Villatoro’s in the morning testified. Exh. 19,
pp. 167-188. He stated that Brown told him the following: after Runnels called Brown
from the hospital, Brown dropped her kids at daycare and went home. Brown told the
officer that Villatoro had stripped the sheets off the pull-out sofa bed, put the bed away
and returned the cushions to the sofa. Villatoro was in the shower. Brown told the
officer that this was unusual behavior for Villatoro, especially after a long night of
drinking. Brown said that when she demanded that Villatoro tell her what happened, he
said that “she [Brown] wouldn’t give it up to him so he went out and got it from out in the
living room.” Id. at 178. The officer asked Brown to come to the police station to give a
statement. The officer stated that Brown became vague and evasive when he
questioned her at the station. Id.
A registered nurse who works as an independent contractor for Washoe County as a
sexual assault nurse examiner testified that she examined Runnels. Exh. 19, pp. 189220. She testified that Runnels had multiple vaginal injuries and that sustaining multiple
injuries is consistent with non-consensual sex. Id.
With respect to Villatoro’s claim in federal ground 1, during opening statements, the
prosecutor said:

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You’ll find out Arlee’s [Brown’s] story changes from what she told the
police before the preliminary hearing. She [Arlee] starts, she goes down
with the defendant. And they go together to the Public Defender’s Office.
And while they’re down there, they meet with one of his defense attorneys,
and the the, the defendant and Arlee Brown watch the defendant’s
confession. They watch Arlee Brown’s interview, they watch the victim’s
interview, they read the entire police file. And then after all that –
Exh. 14, pp. 22-23. At that point, the defense objected.

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After a discussion at the bench, the judge excused the jury for the rest of the day. Id.
at 23. After the jury left, the judge described what had happened:

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The record should reflect that Ms. Druckman [the prosecutor] has a
power point slide, and it states: Joanna Roberts, the defendant’s lawyer,
and then bullet point: Met with the defendant and Arlee Brown in her office
and discussed the case with them together. Bullet point: She allowed the
defendant and Arlee Brown to mutually watch everyone’s interviews.
Discuss them.

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And then there was an objection. And then Court stopped the
proceedings.
Id. at 24. The prosecutor acknowledged that later bullet points in her presentation

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concerned defense counsel’s purported review of medical records and police reports

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with the defendant and with Arlee Brown. Id. at 26.

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The defense moved for a mistrial, arguing that the state had falsely portrayed
defense counsel as coaching Brown. Id. at 35.
The district court denied the request but ordered the prosecutor to remove any

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reference to Ms. Roberts in the power point presentation. Id. at 36-37. The court further

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noted that “[i]n my years of being a trial judge, I’ve never, ever had a prosecutor do this.

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This is bizarre. It – and it’s totally unnecessary.” Id. at 36. The court admonished the

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State “that if you try to pull this stunt ever again, or, in this trial, I will grant a mistrial, and

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I will refer it to the State bar.” Id. at 37.

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When trial resumed the next day, the defense renewed its motion for mistrial. Exh.

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18, pp. 1-8. The court again noted the “inappropriate behavior” of the prosecutor but

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denied the motion. Id. at 9.

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In the alternative, defense counsel then requested the following curative instruction:
The prosecutor made certain uncalled for insinuations about defense
counsel. The prosecutor’s improper remarks amount to an attempt to
prejudice you against the defendant. The prosecutor presented opening
statements. During that presentation an objection was made by defense
counsel. The prosecutor engaged in improper argument which unfairly
disparaged the motive of defense counsel. You are to disregard any
references made by the prosecutor regarding defense counsel Joanna
Roberts. Nothing counsel says during opening statement is evidence. The
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Court will remedy the misconduct of the prosecutor outside the presence
of the jury.
Were you to believe the unwarranted insinuations and convict the
defendant on the basis of them, I will have to declare a mistrial. Therefore,
you must disregard these improper, unsupported remarks.

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Id. at 14-15. The judge denied this request.

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The jury returned, and the court addressed the jury:

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Before we continue with opening statements, the Court wants to
remind you that the statements and arguments of the attorneys are not
evidence in this case. You have received no evidence or heard no
testimony in this case. And throughout the trial I will be, as the law
requires, I must remind you at every break that you are not to form any
ultimate conclusion regarding this case until you have heard all of the
testimony, the sworn testimony from the witness stand, that you have
received all of the evidence that will be admitted by the Court pursuant to
law, and that you have been instructed on the case.
But again, the arguments, the statements, the questioning of the
lawyers, the chatter back and forth between the lawyers, that’s not
evidence.
Id. at 20-21.
Affirming the convictions on direct appeal, the Nevada Supreme Court concluded

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that the district court did not err in denying the motion for mistrial and rejecting the

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proposed jury instruction to correct an instance of misconduct. Exh. 29, p. 3. The state

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supreme court reasoned that “[g]iven the passing nature of the prosecutor’s insinuation

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and the district court’s instruction to the jury, we find no abuse of discretion in either the

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denial of Villatoro’s motion or the rejection of his proposed jury instruction.” Id.

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This court concludes that Villatoro has not demonstrated that federal habeas relief is

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warranted on this claim. He has not demonstrated that this brief statement made during

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opening argument so infected the trial with unfairness as to make it a violation of due

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process. Defense counsel objected, and the court quickly halted the State’s improper

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comments and admonished the State outside of the jury’s presence. The court then

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reminded the jury that opening statements are not evidence. Moreover, while the

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prosecutor improperly interjected the public defender into her opening statement, Arlee
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Brown was thoroughly questioned on direct and cross. The record reflects that the jury
had ample opportunity to assess her credibility. Villatoro has failed to show that the
Nevada Supreme Court’s decision was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the U.S. Supreme
Court, or was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal
habeas relief is denied as to ground 1.
b. Ineffective Assistance of Trial Counsel Claims
In grounds 3 and 4 Villatoro contends that his trial counsel rendered ineffective
assistance. Ineffective assistance of counsel claims are governed by the two-part test
announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the
Supreme Court held that a petitioner claiming ineffective assistance of counsel has the
burden of demonstrating that (1) the attorney made errors so serious that he or she was
not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the
deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness. Id. To
establish prejudice, the defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is “probability sufficient to undermine confidence in
the outcome.” Id. Additionally, any review of the attorney’s performance must be “highly
deferential” and must adopt counsel’s perspective at the time of the challenged conduct,
in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the
petitioner’s burden to overcome the presumption that counsel’s actions might be
considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with performance being measured

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against an objective standard of reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations
omitted). When the ineffective assistance of counsel claim is based on a challenge to a
guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985).
If the state court has already rejected an ineffective assistance claim, a federal
habeas court may only grant relief if that decision was contrary to, or an unreasonable
application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state supreme
court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.”
Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)).
The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s
performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal
citations omitted). Moreover, federal habeas review of an ineffective assistance of
counsel claim is limited to the record before the state court that adjudicated the claim on
the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has
specifically reaffirmed the extensive deference owed to a state court's decision
regarding claims of ineffective assistance of counsel:

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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,” id. at 689,
104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059,
138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is
“doubly” so, Knowles, 556 U.S. at ––––, 129 S.Ct. at 1420. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. 556 U.S. at ––––, 129 S.Ct. at 1420. Federal habeas courts
must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d)
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applies, the question is whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard.
Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of
counsel must apply a ‘strong presumption’ that counsel’s representation was within the
‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466
U.S. at 689). “The question is whether an attorney’s representation amounted to
incompetence under prevailing professional norms, not whether it deviated from best
practices or most common custom.” Id. (internal quotations and citations omitted).
Ground 3
Villatoro claims that defense counsel rendered ineffective assistance in violation of
his Sixth and Fourteenth Amendment rights when they failed to seek a DNA expert for
trial (ECF No. 9, pp. 14-15).
Washoe County crime laboratory personnel testified at trial that “[p]ositive results for
the presumptive presence of semen” were found when swabs from Runnels’ genital
area were analyzed. Exh. 19, p. 40. Defense counsel asked an analyst if she could tell
whether the DNA on a sample came from saliva or semen, and the analyst replied: “we
are not able to tell where that DNA came from.” Id. at 87.
Villatoro now argues that his trial counsel should have conducted further
investigation to determine whether this evidence could be consistent with Villatoro’s
claim that he only engaged in consensual cunnilingus with Runnels and whether two
other men could have been the source of the semen (ECF No. 9, p. 14).
In its order affirming the denial of Villatoro’s state postconviction habeas petition, the
Nevada Supreme Court concluded that Villatoro failed to demonstrate deficiency or
prejudice, reasoning:

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Appellant's defense was that the sexual contact was consensual;
therefore, evidence of another person having had similar contact with the
victim would have been irrelevant. Further, appellant did not say why
counsel should have doubted and thus sought to impeach the victim's
statement that she had not recently been sexually active. Thus even if his
claims were true, appellant would not have been entitled to relief. See
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984)
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(holding that a petitioner is not entitled to an evidentiary hearing where his
claims are unsupported by specific factual allegations that, if true, would
have entitled him to relief). We therefore conclude that the district court did
not err in denying this claim without an evidentiary hearing.
Exh. 46, p. 3.
Villatoro’s claim here fails. The defense theory of the case was that he and Runnels
engaged in consensual oral sex. Thus, defense counsel elicited testimony that it was
not possible to determine whether the DNA was from saliva or semen in order to
support the theory that the DNA was not from semen. A crime lab analyst testified that
Villatoro could not be excluded as the source of the DNA. As the Nevada Supreme
Court pointed out, any evidence that other DNA was also identified was not relevant.
Villatoro has not demonstrated that the Nevada Supreme Court’s decision on federal
ground 3 was contrary to, or involved an unreasonable application of, Strickland, or was
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d). Accordingly, ground 3 is denied.
Ground 4
Villatoro contends that trial counsel was ineffective for failing to proffer a reasonable
curative instruction in response to the prosecutor’s improper statements during opening
arguments (ECF No. 9, p. 16). He asserts that the instruction defense counsel
proffered was above and beyond what was appropriate under the circumstances, that
the court would have given the jury a more reasonable instruction, and that it is
reasonably probable that the outcome of trial would have been different.
The curative instruction the defense proffered is set forth above in the discussion of
ground 1. Affirming the denial of the state postconviction petition, the Nevada Supreme
Court again held that Villatoro failed to demonstrate deficiency or prejudice. Exh. 46, p.
3. The state supreme court pointed out that Villatoro did not “state what instruction
counsel should have requested that would have had the desired effect of both
alleviating the misconduct and not calling it to the jury’s attention.” Id.

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Villatoro has not explained what instruction should have been requested and has not
shown a reasonable probability of a different outcome of trial. He has not demonstrated
that the Nevada Supreme Court’s decision on federal ground 4 was contrary to, or
involved an unreasonable application of, Strickland, or was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 4.

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Therefore, the petition is denied in its entirety.
IV.

Certificate of Appealability

This is a final order adverse to the petitioner. As such, Rule 11 of the Rules
Governing Section 2254 Cases requires this court to issue or deny a certificate of
appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.
Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has
made a substantial showing of the denial of a constitutional right." With respect to
claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right and (2) whether the court's procedural ruling was correct. Id.
Having reviewed its determinations and rulings in adjudicating Villatoro’s petition, the
court finds that none of those rulings meets the Slack standard. The court therefore
declines to issue a certificate of appealability for its resolution of any of Villatoro’s
claims.
V.

Conclusion

IT IS THEREFORE ORDERED that the amended petition (ECF No. 9) is DENIED in
its entirety.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

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DATED: day of November,
DATED: This 6th24 October 2018. 2018.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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