Perez v. Baker et al

Filing 44

ORDER - The First Amended Petition (ECF No. 17 ) is DENIED. Petitioner is denied a certificate of appealability. Clerk shall enter final judgment accordingly and close this case. Signed by Judge Howard D. McKibben on 9/14/2020. (Copies have been distributed pursuant to the NEF - AB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NOE ORTEGA PEREZ,

Case No. 3:17-cv-00538-HDM-CLB
Petitioner,

v.

ORDER

BAKER, WARDEN, et al.,
Respondents.

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This is a counseled petition for a writ of habeas corpus
12
pursuant to 28 U.S.C. § 2254, filed by a Nevada state prisoner.
13
The petitioner, Noe Ortega Perez, challenges his 2010 state court
14
conviction, following a jury trial, of six counts of lewdness with
15
a child under the age of 14 and two counts of sexual assault with
16
a minor under 14 years of age. (Pet. Ex. 33). 1 The first amended
17
petition comes before the court for consideration of the merits.
18
(ECF No. 17). Respondents have answered (ECF No. 28), and the
19
petitioner has filed a reply (ECF No. 37).
20
I. Factual and Procedural Background
21
On April 17, 2009, the petitioner was charged by way of
22
indictment with eight counts of lewdness with a child under the
23
age of 14 and two counts of sexual assault with a minor under 14
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25
26
27
28

1 The exhibits cited in this order, comprising the relevant state court
record, are located at ECF Nos. 18-21, 23 and 29-30. The petitioner’s
exhibits, located at ECF Nos. 18-21 and 23, are cited as Pet. Exs. The
respondents’ exhibits, located at ECF Nos. 29-30, are cited as Resp.
Exs.

1

1

years of age, for acts that he engaged in with his 13-year-old

2

niece-by-marriage, R.B., on September 13, 2008. (Pet. Exs. 3-10). 2

3

On September 2, 2009, the State noticed the expert testimony

4

of Dr. John Paglini. (Resp. Ex. 11). The notice stated that Dr.

5

Paglini

6

children.”

7

curriculum vitae. (Id.) On October 12, 2009, defense counsel moved

8

to exclude Dr. Paglini’s testimony on the grounds that the notice

9

was insufficient. (Pet. Ex. 15). The court denied the motion. (Pet.

10

“testify

(Id.)

as

Attached

to

grooming

to

the

techniques

notice

was

Dr.

used

upon

Paglini’s

Ex. 14 (Tr. 23)).

11
12

would

At

the

trial,

which

commenced

on

October

15,

2009,

the

following relevant evidence was presented.

13

On September 12, 2008, the petitioner, his wife, Maria Perez,

14

and their 13-year-old niece R.B., traveled by car to Las Vegas.

15

(Pet. Ex. 19 (Tr. 66)). A week prior, the petitioner told Maria

16

Perez that he had purchased three tickets for a concert in the

17

city and that they should bring R.B. along. (Pet. Ex. 20 (Tr.

18

133)).

19

On the way to Las Vegas, the petitioner, Maria Perez, and

20

R.B. stopped at a restaurant, where the petitioner played footsie

21

with R.B. under the table. (Pet. Ex. 19 (Tr. 67)). After checking

22

into the hotel room, they walked down Las Vegas Boulevard. As Maria

23

Perez walked in the front, the petitioner and R.B. held hands.

24

(Id. at 68-69). Maria Perez noticed during the walk that the

25

petitioner was grabbing R.B.’s shoulder. (Pet. Ex. 20 (Tr. 131-

26

32)). To R.B., Maria Perez appeared upset when she saw this. (Pet.

27

Ex. 19 (Tr. 70)).

28

2

One of the lewdness counts was later dropped. (Pet. Exs. 13, 16).

2

1

Later that night, back in the hotel room, the petitioner

2

kissed R.B. while Maria Perez was in the bathroom. (Id. at 71-77).

3

The next day while swimming at the hotel pool, the petitioner

4

flirtatiously touched R.B. under the water. (Id. at 78)). R.B.

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told the petitioner that she was enjoying the trip and that she

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wished she could be there alone with him. (Id. at 79). Around 2 or

7

3 p.m., they returned to the hotel room, where first R.B. and then

8

Maria Perez took a shower. (Id. at 80-81). While Maria Perez was

9

in the bathroom, the door slightly ajar, the petitioner began to

10

kiss R.B. (Id. 83-84). The petitioner paused to go into the

11

bathroom and check in on Maria Perez, and he closed the bathroom

12

door upon his return. (Id. at 84-85). The petitioner then knelt in

13

front of R.B., who was by then sitting on the corner of one of the

14

beds. (Id. at 85-86). They kissed again, then lay on the bed, where

15

the petitioner pulled down R.B.’s pants and panties. (Id. at 86-

16

87). The petitioner then touched and penetrated R.B.’s vagina with

17

his fingers and tongue and kissed her breasts. (Id. at 88-89).

18

R.B. testified that she did not want to kiss the petitioner

19

but did not tell him no and in fact kissed him back because she

20

had feelings for him and she wanted him to know that. (Id. at 134-

21

36). She testified that she told the petitioner she wanted to be

22

alone with him because of those feelings, but that she did not

23

expect him to do all the things he did. (Id. at 98-99, 137, 139).

24

She was surprised when he pulled her pants down, and she did not

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want him to pull her pants down, but she did not scream because

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she was afraid Maria Perez would be mad and did not stop the

27

petitioner because she was afraid of losing his trust. (Id. at

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152, 166).
3

1

Maria Perez came out of the bathroom to retrieve a sponge,

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saw R.B. and the petitioner together on the edge of the bed, and

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began to yell. (Id. at 89; Pet. Ex. 20 (Tr. 141-43)). Hitting the

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petitioner, Maria Perez asked what was going on. (Pet. Ex. 20 (Tr.

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144-45)). Neither the petitioner nor R.B. responded. (Id. at 145).

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R.B. quickly pulled up her pants and the petitioner stepped back.

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(Pet. Ex. 19 (Tr. 92); Pet. Ex. 20 (Tr. 142-43)). Maria Perez

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grabbed and opened her cell phone, and the petitioner knocked it

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out of her hands. (Pet. Ex. 19 (Tr. 93)). Yelling, screaming, and

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crying, Maria Perez asked R.B. what happened. When R.B. did not

11

answer, Maria Perez began to slap her. (Id. at 93-94)). As the

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petitioner pulled Maria Perez off R.B., hotel security knocked at

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the door. (Id. at 94-95).

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The two hotel security officers who responded to the room

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heard arguing and things being thrown around as they approached.

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(Pet. Ex. 22 (Tr. 31-33)). After they knocked, the petitioner

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opened the door and said, “I didn’t do anything.” (Id. at 33). The

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petitioner then went down the hallway with one officer while R.B.

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and Maria Perez went with the other officer. (Id. at 34). Maria

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Perez, who was crying, shaking and very upset, told the officer

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that when she had opened the door she saw R.B.’s pants and panties

22

down to her upper thigh, which she indicated by pointing to her

23

upper thigh. (Id. at 35-36). Maria Perez said she wanted to press

24

charges, so the officer took her to another location to fill out

25

voluntary statements. (Id. at 36-37). The officer wrote down what

26

Maria Perez said verbatim and read it back to her before Maria

27

Perez signed it. (Id. at 38-39).

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4

1

When the police arrived, Maria Perez reported that she saw

2

the petitioner grabbing R.B.’s chest and kissing R.B. and that

3

R.B.’s pants were down around her ankles. (Pet. Ex. 22 (Tr. 65)).

4

She also stated that she had tried to call the police but the

5

petitioner had snatched her cell phone out of her hands. (Id. at

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110-11). Maria Perez stated that she had become suspicious of the

7

petitioner’s relationship with R.B. earlier in the day. (Pet. Ex.

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20 (Tr. 163-64)).

9

At trial, however, Maria Perez denied both that R.B.’s pants

10

were down and that she told hotel security or the police as much.

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(Pet. Ex. 20 (Tr. 144, 151, 160); Pet. Ex. 22 (Tr. 17-20)). She

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testified that R.B. and the petitioner were not lying down, that

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the petitioner was not on top of R.B., and that they were not

14

kissing; she testified she saw no part of the petitioner in or

15

near R.B.’s vagina. (Pet. Ex. 22 (Tr. 17-20)). She also denied

16

that the petitioner had prevented her from calling the police.

17

(Pet. Ex. 20 (Tr. 148)). Maria Perez testified that R.B. claimed

18

the petitioner forced her only after she threatened to tell R.B.’s

19

mother what had happened. (Pet. Ex. 22 (Tr. 28)).

20

The petitioner told police that he kissed R.B. on the neck,

21

that he had romantic feelings toward her, and that R.B. was a

22

woman. (Pet. Ex. 22 (Tr. 126-27)). He admitted to telling her he

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was falling in love with her before their trip. (Id. at 130-31).

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He denied having sex with R.B. (Id. at 131).

25

R.B. told security that the petitioner had pinned her down on

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the bed and touched her and that she tried to push him off. (Pet.

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Ex. 19 (Tr. 97-98, 141-42)). She told police that she could feel

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the petitioner’s erect penis and that she had been wearing a robe.
5

1

(Id. at 90-91, 173-75). At trial, she testified that none of this

2

was true. (Id. at 90-91, 97-98, 143, 173-75). R.B. testified that

3

she lied because she was afraid that if she told the truth, Maria

4

Perez would leave her alone in Vegas. (Id. at 97-98, 151). For the

5

same reason, she did not tell police that the petitioner put his

6

finger and tongue in her vagina. (Id. at 148-49). When asked if

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she remembered this first report and whether all of it was true,

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R.B. said, “Most of it was true and most of it was a lie.” (Id. at

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150).

10

A week after the Las Vegas incident, R.B. decided to tell her

11

family the truth. (Pet. Ex. 19 (Tr. 144)). She explained to them

12

that she and the petitioner had been kissing and were together.

13

(Id. at 100-01).

14

R.B. testified that she had known the petitioner her entire

15

life. (Pet. Ex. 19 (Tr. 49)). The summer before the incident, their

16

relationship began to change and the petitioner started calling

17

and texting her and acting romantically toward her. (Id. at 50-

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54, 128-31). In June 2008, the petitioner winked at R.B. during a

19

family gathering. (Id. at 122-23). At another gathering, he grabbed

20

and rubbed R.B.’s feet. (Id. at 124, 127). The petitioner told

21

R.B. that he had feelings for her, and that he was uncomfortable

22

when she was around other boys; he also described to her dreams of

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a sexual nature he had about her. (Id. at 54, 64-66). One day,

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when R.B. and the petitioner were alone in a car, he touched her

25

thigh and hand and then they began kissing. (Id. at 63-64).

26

During trial, Dr. Paglini was called and asked whether, in

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the situation of “a 13-year-old niece who had known her 33-year-

28

old uncle for her whole life and seen him on a regular basis,” the
6

1

following hypotheticals occurring “over about a three or four month

2

period,” constituted grooming, (Pet. Ex. 20 (Tr. 54-62)): the

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perpetrator (1) “touching the nieces [sic] foot under the table at

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family parties, maybe winking at the niece”, (id. at 54); (2)

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making “phone calls . . . to the individual who is being groomed”

6

telling

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“comments … that … the … alleged perpetrator thought that this

8

child was someone he could trust,” (id. at 58); (4) spending more

9

time with the niece over the three-month period, with touching and

10

winking, (id. at 59); (5) trying to get the 13-year-old alone with

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him, (id. at 59); (6) while alone, holding his niece’s hand,

12

touching her thigh, and French kissing her, (id. at 59); (7) making

13

statements to his niece that he was concerned about her spending

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time with other boys, (id. at 60); (8) telling the niece about a

15

dream he had about taking her clothes off, (id. at 60); (9) sitting

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at a table with his wife and touching the niece’s foot under the

17

table, (id. at 61); (10) while out walking with his wife and niece,

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with his wife in front, grabbing his niece and putting his arm

19

around her, (id. at 61-62); (11) touching the niece under water

20

while swimming, (id. at 62); and (12) inviting the niece on an

21

out-of-town trip to attend a concert, (id. at 62). Dr. Paglini

22

responded that all of it was potential grooming. (Id. at 58-60,

23

62).

her

how

pretty

she

was,

(id.

at

57-58);

(3)

making

24

Additionally, the State introduced a phone call between the

25

petitioner and his wife that was recorded while the petitioner was

26

incarcerated.

27

stipulate to foundation, the State first called a witness from the

28

prison to authenticate the phone call.

(Pet.

Ex.

21).

As

7

defense

counsel

refused

to

1

Ultimately, the jury found the petitioner guilty on all but

2

one count. (Pet. Ex. 25). The petitioner was then sentenced to

3

several concurrent terms of imprisonment, including two terms of

4

life with the possibility of parole after thirty-five years. (Pet.

5

Ex. 33).

6

The

petitioner

pursued

a

direct

appeal

and

a

state

7

postconviction petition and appeal. Failing to obtain relief in

8

state court, the petitioner filed the instant federal habeas

9

petition.

10

II. Standard

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28 U.S.C. § 2254(d) provides the legal standards for this

12

Court’s consideration of the merits of the petition in this case:

13

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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 –

16

(1)

14

17
18
19
20

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.

21
AEDPA “modified a federal habeas court’s role in reviewing
22
state prisoner applications in order to prevent federal habeas
23
‘retrials’ and to ensure that state-court convictions are given
24
effect to the extent possible under law.” Bell v. Cone, 535 U.S.
25
685, 693-694 (2002). This court’s ability to grant a writ is
26
limited to cases where “there is no possibility fairminded jurists
27
could disagree that the state court’s decision conflicts with
28
8

1

[Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86,

2

102 (2011). The Supreme Court has emphasized “that even a strong

3

case for relief does not mean the state court’s contrary conclusion

4

was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75

5

(2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

6

(describing the AEDPA standard as “a difficult to meet and highly

7

deferential standard for evaluating state-court rulings, which

8

demands that state-court decisions be given the benefit of the

9

doubt”) (internal quotation marks and citations omitted.)

10

A state court decision is contrary to clearly established

11

Supreme Court precedent, within the meaning of 28 U.S.C. § 2254,

12

“if the state court applies a rule that contradicts the governing

13

law set forth in [the Supreme Court’s] cases” or “if the state

14

court

15

indistinguishable from a decision of [the Supreme Court] and

16

nevertheless arrives at a result different from [the Supreme

17

Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v.

18

Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at

19

694).

confronts

a

set

of

facts

that

are

materially

20

A state court decision is an unreasonable application of

21

clearly established Supreme Court precedent, within the meaning of

22

28 U.S.C. § 2254(d), “if the state court identifies the correct

23

governing legal principle from [the Supreme Court’s] decisions but

24

unreasonably applies that principle to the facts of the prisoner’s

25

case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413).

26

The “unreasonable application” clause requires the state court

27

decision to be more than incorrect or erroneous; the state court’s

28
9

1

application

2

unreasonable. Id. (quoting Williams, 529 U.S. at 409).

of

clearly

established

law

must

be

objectively

3

To the extent that the state court’s factual findings are

4

challenged, the “unreasonable determination of fact” clause of §

5

2254(d)(2) controls on federal habeas review. E.g., Lambert v.

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Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires

7

that the federal courts “must be particularly deferential” to state

8

court factual determinations. Id. The governing standard is not

9

satisfied by a showing merely that the state court finding was

10

“clearly

11

substantially more deference:

12
13
14
15
16

erroneous.”

Id.

at

973.

Rather,

AEDPA

requires

.... [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.

17

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

18

Lambert, 393 F.3d at 972.

19

Under 28 U.S.C. § 2254(e)(1), state court factual findings

20

are presumed to be correct unless rebutted by clear and convincing

21

evidence.

22

preponderance of the evidence that he is entitled to habeas relief.

23

Cullen, 563 U.S. at 181.

24

are entitled to deference under AEDPA and may not be disturbed

25

unless they were ones “with which no fairminded jurist could

26

agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015).

The

petitioner

bears

the

burden

of

proving

by

a

The state courts’ decisions on the merits

27

The petitioner claims in this action each assert ineffective

28

assistance of counsel. Such claims are governed by Strickland v.
10

1

Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner

2

must

3

performance by counsel and prejudice. 466 U.S. at 687. With respect

4

to the performance prong, a petitioner must carry the burden of

5

demonstrating that his counsel’s performance was so deficient that

6

it fell below an “objective standard of reasonableness.” Id. at

7

688. “‘Judicial scrutiny of counsel’s performance must be highly

8

deferential,’ and ‘a court must indulge a strong presumption that

9

counsel's

satisfy

two

conduct

prongs

falls

to

obtain

within

the

habeas

wide

relief—deficient

range

of

reasonable

10

professional assistance.’” Knowles v. Mirzayance, 556 U.S. 111,

11

124 (2009) (citation omitted). In assessing prejudice, the court

12

“must ask if the defendant has met the burden of showing that the

13

decision

14

absent [counsel’s] errors.” Strickland, 466 U.S. at 696.

15

III. Analysis

reached

would

reasonably

likely

have

been

different

16

A. Ground One

17

In his first ground for relief, the petitioner asserts that

18

counsel on direct appeal was ineffective for failing to adequately

19

brief, and omitting meritorious arguments in support of, his claim

20

that his right to a fair trial was violated by Dr. Paglini’s

21

inappropriate and unnoticed expert testimony. (ECF No. 17 at 8).

22

On direct appeal, counsel raised a single issue: that Dr.

23

Paglini’s testimony was erroneously admitted. (Pet. Ex. 37). In

24

the brief, counsel argued that the notice was insufficient and Dr.

25

Paglini was not qualified to testify on grooming. (Id.)

26

The Nevada Supreme Court affirmed. In a 4-3 decision, the

27

Supreme Court rejected the petitioner’s argument that the notice

28

was insufficient, explaining that it was filed more than a month
11

1

before trial, identified that Dr. Paglini would testify as to

2

grooming,

3

demonstrating experience relevant to his expertise. (Ex. 43 at 17-

4

18). 3 The court continued:

and

included

Dr.

Paglini’s

curriculum

vitae

5

8

Perez’s brief argument does not allege that the State
acted in bad faith or that his substantial rights were
prejudiced because the notice did not include a report
or more detail about the substance of Dr. Paglini’s
testimony. . . . Under the circumstances, we discern no
abuse of discretion in allowing Dr. Paglini to testify.

9

(Id. at 18). The court also concluded that (1) Dr. Paglini was

10

qualified to testify, (2) the testimony was relevant and, with one

11

exception, limited to Dr. Paglini’s area of expertise, and (3) Dr.

12

Paglini did not improperly vouch for the victim. (Pet. Ex. 43 at

13

6-17). In part of its analysis, the court explained:

6
7

14

As to unfair prejudice, Dr. Paglini’s testimony did not
stray beyond the bounds set by this court and other
jurisdictions
for
expert
testimony.
Dr.
Paglini
generally addressed how grooming occurs and its purpose.
He then offered insight in the form of hypotheticals
that were based on Perez’s conduct and indicated that
such conduct was probably grooming behavior. See Shannon
v. State, 105 Nev. 782, 787, 783 P.2d 942, 945 (1989)
(providing that experts can testify to hypotheticals
about victims of sexual abuse and individuals with
pedophilic disorder). He did not offer an opinion as to
the victim's credibility or express a belief that she
had been abused. See Townsend, 103 Nev. at 118-19, 734
P.2d at 708-09. Dr. Paglini’s testimony therefore meets
the first component of the “assistance” requirement.

15
16
17
18
19
20
21
22

(Id. at 13).

23

In state postconviction proceedings, the petitioner argued

24

that appellate counsel was ineffective for failing to argue that

25

the

26

Paglini’s testimony failed to help the jury understand the evidence

State’s

insufficient

notice

was

in

bad

faith,

27
28

3

Citation is to ECF page number at the top of the page.

12

that

Dr.

1

or determine an issue, and that the testimony caused him prejudice.

2

(Pet. Ex. 54 at 41-42, 49-50). 4 The Nevada Supreme Court held:

3

[A]ppellant contends that his appellate counsel was
ineffective by failing to argue on direct appeal that an
expert’s testimony failed to assist the jury in
understanding the evidence or determining an issue and
that appellant was prejudiced by the testimony. Because
this court nonetheless addressed these subjective issues
and specifically concluded that the expert’s testimony
assisted the jury and did not prejudice appellant, . .
. there was no reasonable probability of a different
outcome on appeal had counsel made these arguments.
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113
(1996) (“To establish prejudice based on the deficient
assistance of appellate counsel, the defendant must show
that the omitted issue would have a reasonable
probability of success on appeal.”). The district court
therefore properly rejected this claim. . . .

4
5
6
7
8
9
10
11

Lastly, appellant argues that his appellate counsel
should have asserted that the State acted in bad faith
in providing an inadequate notice of the expert’s
testimony. Appellant has not demonstrated prejudice,
however, because this court concluded in Perez, 129
Nev., at 862-63, 313 P.3d at 870, that the expert witness
notice was sufficient, and thus, any argument concerning
the State’s bad faith in providing an insufficient
notice would not have altered the outcome. Further,
appellate counsel challenged the adequacy of the expert
witness notice and appellant has not pointed to anything
that demonstrates the State’s bad faith or that he was
prejudiced by the expert notice. [n.3: The dissent
concludes that appellate counsel’s failure to allege
that the State acted in bad faith in providing its expert
witness notice warranted an evidentiary hearing because
appellant was surprised by the expert’s testimony and
did not know that the expert would be presented with
hypotheticals involving facts similar to the underlying
facts here. During a pretrial hearing, however, the
State specifically informed appellant that the expert
would testify regarding grooming techniques and then be
asked to apply his knowledge of those techniques to the
facts of this case.] Thus, the district court did not
err in rejecting appellant’s claim of ineffective
assistance of appellate counsel.

12
13
14
15
16
17
18
19
20
21
22
23
24
25

(Pet. Ex. 57 at 2-4).

26

The

27

highly

28

4

petitioner

prejudicial

asserts
because

that
it

Dr.

Paglini’s

employed

Citation is to original page of document.

13

testimony

hypotheticals

was

directly

1

mirroring

2

petitioner had groomed R.B. and was akin to profile evidence, which

3

is generally inadmissible. In addition, he argues, the testimony

4

had the effect of rationalizing R.B.’s inconsistent testimony. 5 He

5

argues that the case against him was weak, as evidenced by R.B.

6

and Maria Perez’s inconsistent and conflicting statements. The

7

petitioner argues that given the highly prejudicial nature of Dr.

8

Paglini’s testimony and the weak evidence supporting his guilt, it

9

is reasonably likely that at least one justice on direct appeal

the

facts

of

the

case,

10

would

11

which

suggested

that

the

appropriately briefed the appeal.

12

have

The

voted

state

to

reverse

courts

were

his

not

conviction

objectively

if

counsel

unreasonable

had

in

13

concluding

14

likelihood of a different result if his counsel had made these

15

arguments.

16

review that they would not have decided the appeal any differently

17

even if counsel had briefed the appeal as the petitioner asserts

18

he should have – either because they actually decided the issues

19

or because the petitioner’s claims were unsupported. This was a

20

reasonable

21

asserts should have been raised were in fact raised in the amicus

22

brief and/or addressed directly by the court in its majority

23

opinion.

24

on direct appeal, the postconviction court held that there was no

25

evidence of bad faith and that the petitioner was not surprised by

that

The

the

petitioner

majority

conclusion.

had

justices

Many

of

not

shown

concluded

the

on

arguments

a

reasonable

postconviction

the

petitioner

While bad faith was not argued or decided by the court

26
The petitioner additionally makes several arguments for the first time
in his reply. The court will not consider contentions raised for the
first time in the reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th
Cir. 2007).
5

27
28

14

1

Dr. Paglini’s testimony. These conclusions were not objectively

2

unreasonable.

3

briefing, it is not reasonably likely that a better brief would

4

have changed the result.

Thus

whatever

the

deficiencies

of

counsel’s

5

In sum, the state courts’ conclusion that the petitioner

6

suffered no prejudice from the alleged deficient performance of

7

counsel is not contrary to, or an unreasonable application of,

8

clearly

9

determination of the facts. Accordingly, the petitioner is not

10

established

federal

law,

nor

is

it

an

unreasonable

entitled to relief on Ground One.

11

B. Ground Two

12

In his second ground for relief, the petitioner asserts that

13

trial counsel was ineffective for (1) “irrationally failing to

14

stipulate to the foundation of” a jail call made by the petitioner;

15

and (2) allowing an attorney to participate in the trial despite

16

having his license suspended for mental health reasons. (ECF No.

17

17 at 17).

18

i. Jail Call

19

Before trial began, the State advised the court that it would

20

be

21

petitioner

22

incarcerated, and that it would need to call a witness from the

23

jail to authenticate the call because the defense was refusing to

24

stipulate to foundation. Defense counsel responded to this by

25

stating he was “not stipulating to anything.” (See Ex. 17 (Tr. 17-

26

18)). Defense counsel explained that he had several objections to

27

the phone call coming in but that he would continue to refuse to

introducing
and

the

transcript

his

wife,

of

recorded

28
15

a

phone

while

call

the

between

the

petitioner

was

1

stipulate even if the court otherwise deemed the call admissible.

2

(Id. at 18-22).

3

Later, defense counsel stated that he was not stipulating to

4

foundation because he was certain the jury would know or at least

5

suspect the calls were recorded while the defendant was in jail.

6

(See

7

recording was probably going to come in and to focus on whether he

8

wanted any prejudicial statements redacted therefrom. (Id. at 183-

9

86).

Ex.

19

(Tr.

181-83)).

The

court

told

counsel

that

the

10

The next day, the court ruled that the call was coming in and

11

told defense counsel to decide whether to stipulate to foundation.

12

(Ex. 20 (Tr. 10)). Defense counsel replied, “I can’t help them

13

with their case, Judge.” (Id.) The court responded, “Actually, I

14

think it’s helping your client.” (Id. at 10-11). The court then

15

asked the petitioner whether he was “on board with that decision.”

16

(Id. at 11). After counsel and the petitioner spoke, the petitioner

17

invoked the Fifth Amendment. (Id.) The court advised that its

18

question did not implicate the Fifth Amendment and that she just

19

wanted to make sure the petitioner was on board because she

20

believed that counsel’s refusal to stipulate would be prejudicial

21

to the defense. (Id. at 11-12). Then, for the next forty-five

22

minutes, the court went back and forth with the petitioner and

23

counsel about whether the petitioner could refuse to answer the

24

question. (Id. at 12-39). At some point, defense counsel stated

25

that he did not think the State could get the call in without

26

causing reversible error. (Id. at 29). Eventually the court ceased

27

the

28

petitioner agreed with his counsel’s strategy. (Id. at 39).

discussion,

concluding

that

16

she

would

assume

that

the

1

During the testimony of the jail witness that followed,

2

defense counsel immediately moved for a mistrial on the grounds

3

that the jury now knew his client was incarcerated. (Ex. 20 (Tr.

4

90-92)).

5

In his state postconviction petition, the petitioner argued

6

that trial counsel was ineffective for failing to stipulate to the

7

foundation for the call, thus assuring that the jury would hear

8

from a State witness that the petitioner was incarcerated. The

9

Nevada Supreme Court addressed the petitioner’s claim as follows:

10
[C]ounsel’s decision not to stipulate to the foundation
for a jail phone call did not establish deficient
representation as the decision was merely a trial
strategy and appellant was given the opportunity to
contest that trial strategy, but chose not to do so. See
Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 28081 (1996) (providing that a strategy decision “is a
tactical decision that is virtually unchallengeable
absent
extraordinary
circumstances”
(internal
quotations omitted)). [Thus], … appellant failed to
establish
a
deficiency
in
his
trial
counsel's
representation. . . .”

11
12
13
14
15
16
17

(Pet. Ex. 57 at 3).

18

There is sufficient evidence in the record made during the

19

trial court proceedings to support the Nevada Supreme Court’s

20

conclusion that counsel’s refusal to stipulate to the foundation

21

for the call was strategic. Counsel stated that he was not going

22

to

23

introduction of the petitioner’s incarceration status would be

24

grounds for reversal. Counsel further suggested he believed the

25

jury would surmise the call had been recorded while the petitioner

26

was in jail. The court cannot conclude that the Nevada Supreme

27

Court was objectively unreasonable in concluding that counsel’s

28

refusal to stipulate to foundation was a strategic decision within

help

the

State

put

on

its

17

case,

and

that

he

believed

1

the wide bounds of reasonable representation. 6 Accordingly, the

2

petitioner is not entitled to relief on Ground Two(A).

3

ii. Suspended Attorney

4

In Ground Two(B), the petitioner asserts that trial counsel

5

was ineffective for allowing John Rogers to participate in his

6

representation despite the fact that Rogers’ license had been

7

suspended for mental health issues. (ECF No. 17 at 17). The

8

petitioner argues that Rogers “participated in bench conferences,

9

sat at the defense table, addressed the court, and even appeared

10

as counsel in the court documents and transcripts.” (Id. at 22).

11

The Nevada Supreme Court addressed this claim as follows:

12

[A]ppellant
failed
to
include
specific
factual
allegations
that
demonstrated
that
without
the
unlicensed attorney’s participation in the trial, he
would have received a more favorable outcome. Thus, he
failed to establish that the unlicensed attorney’s
participation was deficient assistance of counsel by
either the unlicensed attorney or his trial counsel.

13
14
15
16

(Pet. Ex. 57 at 3).

17

The petitioner concedes it is unknown the extent to which

18

Rogers participated but asserts that where there is de facto

19

absence of counsel, prejudice can be presumed. The respondents

20

assert that the record suggests that Rogers primarily sat behind

21

the counsel table and took notes and that it was the petitioner’s

22

counsel who did everything during trial. In reply, the petitioner

23

argues that he was never given the opportunity to develop his claim

24

of prejudice on this claim and that the court should therefore

25

conduct an evidentiary hearing.

26
27
28

The court therefore need not, and does not, address respondents’
alternative contention that the petitioner was not prejudiced by
counsel’s conduct.
6

18

1

First, the petitioner has provided no legal or factual support

2

for

3

resulted in a de facto deprivation of counsel. The petitioner was

4

represented by licensed counsel. Further, Rogers’ license was

5

suspended and not revoked. Under these circumstances, there is no

6

support for the finding that the petitioner suffered de facto

7

deprivation of counsel. See United States v. Hoffman, 733 F.2d

8

596, 599-601 (9th Cir. 1984).

9

his

assertion

Second,

the

that

Rogers’

petitioner

has

participation

not

in

established

his

a

defense

reasonable

10

likelihood of a different outcome had Rogers not participated in

11

his trial. There is no evidence or specific factual allegation of

12

how Rogers influenced any events during the trial, much less a

13

compelling argument that the result of trial would have been

14

different had those events not occurred. The state courts were not

15

therefore objectively unreasonable in rejecting this claim.

16

Indeed, the petitioner concedes that his claim is unsupported

17

but argues that he is entitled to an evidentiary hearing to develop

18

the factual basis of his claim. For the reasons discussed infra,

19

the petitioner is not entitled to an evidentiary hearing on this

20

claim.

21

Accordingly, the petitioner is not entitled to relief on

22

Ground Two(B).

23

IV. Request for Evidentiary Hearing

24

Although the petition contains a request for an evidentiary

25

hearing, there is no argument provided in support of that request

26

in the petition nor is there a separately filed motion for an

27

evidentiary hearing. While the reply contains argument in support

28
19

1

of the request, the court will not consider arguments raised for

2

the first time in the reply. Zamani, 491 F.3d at 997.

3

Further, even if the court were to consider the petitioner’s

4

arguments, the request for a hearing would be denied, as the

5

petitioner has made no “colorable allegations that, if proved at

6

an evidentiary hearing, would entitle him to habeas relief.”

7

Williams v. Filson, 908 F.3d 546, 564–65 (9th Cir. 2018).

8

V. Certificate of Appealability

9

In order to proceed with an appeal, the petitioner must

10

receive a certificate of appealability. 28 U.S.C. § 2253(c)(1);

11

Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d

12

946, 950-951 (9th Cir. 2006); see also United States v. Mikels,

13

236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must

14

make “a substantial showing of the denial of a constitutional

15

right” to warrant a certificate of appealability. Allen, 435 F.3d

16

at 951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

17

483-84 (2000). “The petitioner must demonstrate that reasonable

18

jurists

19

constitutional claims debatable or wrong.” Allen, 435 F.3d at 951

20

(quoting Slack, 529 U.S. at 484). In order to meet this threshold

21

inquiry, the petitioner has the burden of demonstrating that the

22

issues are debatable among jurists of reason; that a court could

23

resolve the issues differently; or that the questions are adequate

24

to deserve encouragement to proceed further. Id.

would

find

the

district

court’s

assessment

of

the

25

The court has considered the issues raised by the petitioner,

26

with respect to whether they satisfy the standard for issuance of

27

a certificate of appealability and determines that none meet that

28
20

1

standard. Accordingly, the petitioner will be denied a certificate

2

of appealability.

3

VI. Conclusion

4

In accordance with the foregoing, IT IS THEREFORE ORDERED

5

that the first amended petition for writ of habeas corpus (ECF No.

6

17) is hereby DENIED.

7
8
9
10

IT

IS

FURTHER

ORDERED

that

the

petitioner

is

DENIED

certificate of appealability.
The Clerk of Court shall enter final judgment accordingly and
CLOSE this case.

11

IT IS SO ORDERED.

12

DATED: This 14th day of September, 2020.

13
14
15

a

____________________________
UNITED STATES DISTRICT JUDGE

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