Nazario v. Rios et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 14 of Magistrate Judge Bernard M. Jones...the petition for writ of habeas corpus 1 is denied; because petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability is also denied. Signed by Honorable Joe Heaton on 4/11/2018. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JIMMY NAZARIO, JR.
Petitioner,
vs.
JOE ALLBAUGH,
Respondent.

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NO. CIV-16-1243-HE

ORDER
Petitioner, a state prisoner appearing through counsel, filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction. The
matter was referred to U.S. Magistrate Judge Bernard M. Jones for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Judge Jones has issued a Report and
Recommendation (the “Report”) recommending that the petition be denied. Petitioner has
filed an objection to the Report which triggers de novo review of by this court of proposed
findings or recommendations to which objection has been made. Casanova v. Ulibarri, 595
F.3d 1120, 1123 (10th Cir. 2010); see also 28 U.S.C. § 636(b)(1)(C).
A jury in Comanche County convicted petitioner of second degree murder, and he
was sentenced to twenty-five years imprisonment. Petitioner’s conviction was affirmed on
direct appeal by the Oklahoma Court of Criminal Appeals (“OCCA”). Petitioner raised
four grounds for relief in his direct appeal, all of which the OCCA reviewed and rejected
in a summary opinion. Petitioner did not seek post-conviction relief in state court.

Here, petitioner relies on the same four grounds that were raised on direct appeal.
Because the OCCA addressed the merits of petitioner’s claims, this court’s review is
governed by 28 U.S.C. § 2254(d). The Supreme Court has repeatedly acknowledged that
Section 2254(d) “erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 134 S. Ct. 10,
16 (2013). Relief may only be granted “where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [the Supreme] Court’s
precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Petitioner has limited his objections to the Report’s determinations: (1) that trial
counsel was not ineffective by failing to impeach two witnesses and to elicit testimony
favorable to self-defense (from Ground One); (2) that trial counsel was not ineffective by
failing to request a jury instruction on the lesser included offense of manslaughter (from
Ground Two); and (3) that the court should deny petitioner’s request for an evidentiary
hearing on the ineffective assistance of counsel claims. Petitioner argues both that trial
counsel was ineffective and that the OCCA’s decision with respect to these issues was
“unreasonable in light of the facts and contrary to, or an unreasonable application of
Strickland v. Washington. Doc. # 15, p. 6. 1
To show constitutionally deficient performance by counsel, a petitioner must
establish both that counsel's performance fell below an objective standard of
reasonableness and that there was prejudice as a result. Strickland v. Washington, 466 U.S.

1

References to filings with this court are to the CM/ECF document and page number.

2

668, 688 & 692 (1984). A court considering an ineffective assistance claim applies a
“strong presumption” that counsel's representation was within the “wide range of
reasonable professional assistance.” Id. at 689. With respect to the prejudice element, a
petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. It is not enough
to show that counsel's errors had some conceivable effect on the outcome of the proceeding.
Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687. The Strickland standard for judging counsel's representation
is a “most deferential one” and that is true even for a court reviewing the performance in
the first instance. Harrington, 562 U.S. at 105. But this court is not reviewing the matter
in the first instance. Rather, it is assessing whether the state court's determination of the
matter involved an “unreasonable application of” the Strickland standard.
For purposes of § 2254(d), “‘an unreasonable application of federal law is different
from an incorrect application of federal law.’” Id. at 101 (quoting Williams v. Taylor, 529
U.S. 362, 410 (2000)). The state court determination is granted “deference and latitude
that are not in operation when the case involves review under the Strickland standard itself.
Id. “A state court's determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of the state court's
decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Stated
otherwise, the petitioner must show that the state court's ruling was “so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103. And even a “strong case
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for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at
102.
Petitioner alleges that counsel’s failure to impeach witnesses Munoz and Dutchover
with prior statements to police and with preliminary hearing testimony was ineffective
assistance of counsel because such impeachment would have “undercut their overall
credibility, and therefore the State’s theory that Petitioner committed second degree
murder.” Doc. #15, p. 2. But petitioner was relying on these witnesses to establish his
self-defense argument. Thus, it cannot be stated with certainty that it was unreasonable for
counsel to fail to further impeach those witnesses. Also, as the Report highlights, the very
statements that petitioner believes should have been used to impeach the witnesses
undercut his self-defense claim. While impeaching a witness with prior inconsistent
statements may be “elementary, and effective cross-examination” as petitioner states, not
impeaching a witness may reasonably be part of a counsel’s strategy that this court will not
second guess on hindsight during habeas review.
Petitioner also asserts that trial counsel should have elicited additional testimony
from Munoz and Dutchover regarding his claim of self-defense. Specifically, petitioner
points to testimony Dutchover provided at the preliminary hearing as more supportive of
his claim of self-defense. But both Munoz and Dutchover had admitted that certain of their
earlier statements and testimony were untruthful. Counsel’s decision to avoid highlighting
this fact, when relying on the witnesses to establish a defense, is within the range of
reasonable choices prudent counsel may make. Further, there is no reasonable probability
that a different choice would have affected the outcome.
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Petitioner also argues that the failure of trial counsel to seek an instruction on the
lesser offense of manslaughter constituted ineffective assistance of counsel and that the
OCCA’s rejection of this argument was an unreasonable application of, or contrary to,
Strickland. But, as noted in the Report, the OCCA concluded that there “was no evidence
to support the giving of the instructions as the evidence did not show that Nazario’s actions
were aroused by adequate provocation.” Doc. #8-5, p. 3. This conclusion was not so
lacking in justification as to preclude the possibility for fairminded disagreement about it.
Applying the standards of Strickland and Harrington to petitioner's motion, the court
concludes he has failed to show a basis for habeas relief. The court cannot say that the
state court determination was so lacking in justification that fairminded jurists could not
have reached it. Further, petitioner has not shown a sufficient basis for overcoming the
limitation of § 2254(d), and there is hence no basis for the requested evidentiary hearing.
See Cullen v. Pinholster, 563 U.S. 170, 185 (2011).
Accordingly, the Report and Recommendation [Doc. #14] is ADOPTED and the
petition for writ of habeas corpus [Doc. #1] is DENIED. Because petitioner has not “made
a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), a
certificate of appealability is also denied.
IT IS SO ORDERED.
Dated this 11th day of April, 2018.

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