Navarro v. Hall

Filing 37

Opinion and Order. For the reasons stated in this order, the Petition for Writ of Habeas Corpus 2 is DENIED. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 5/5/2010 by Judge Owen M. Panner. (dkj)

FILED> 10 i"'IAY

6 E: :08USDC'ORi"j

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON PORTLAND D I V I S I O N ALBERTO NAVARRO, C i v i l No. 08-6357-PA Petitioner,

v.
GUY HALL, O P I N I O N AND ORDER Respondent. Per C. Olson Hoevet Boise & Olson, P.C. 1 0 0 0 SW B r o a d w a y , S u i t e 1 5 0 0 P o r t l a n d , OR 9 7 2 0 5 Attorney for Petitioner J o h n R. K r o g e r Attorney General L e s t e r R. H u n t s i n g e r Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97310 Attorneys for Respondent

1 - O P I N I O N AND ORDER

PANNER, D i s t r i c t J u d g e . Peti tioner U.S.C.
§

brings

this

habeas

corpus

case

pursuant

to

28

2254 in which he seeks to challenge the l e g a l i t y of his

underlying s t a t e court convictions for Murder and Unlawful Use of a Weapon. For the reasons that follow, the Petition for Writ of

Habeas Corpus (#2) i s denied.
BACKGROUND

On M a r c h 1 0 , 2 0 0 3 , p e t i t i o n e r c o n f r o n t e d V i c t o r O c h o a - G a r i b a y over his involvement with petitioner's former girlfriend. Guerrero. Erika

A physical confrontation ensued in which Ochoa-Garibay As O c h o a -

prevailed, ultimately knocking petitioner to the ground.

Garibay walked away, p e t i t i o n e r , s t i l l lying on the ground, pulled out a gun and shot Ochoa-Garibay in the lower back. ultimately died from the gunshot wound. On M a r c h 1 2 , 2 0 0 3 , p o l i c e o f f i c e r s i n t e r v i e w e d p e t i t i o n e r . He Ochoa-Garibay

admitted shooting Ochoa-Garibay, but claimed he had only intended to scare him, Authorities not k i l l him. Respondent's Exhibit 103, petitioner with Murder p. 37. a

ultimately

charged

with

Firearm and two counts of Unlawful Use of a Weapon. Exhibit 102.

Respondent's

Petitioner proceeded to a jury t r i a l where the jury returned a unanimous guilty verdict an a l l three counts. The t r i a l court

imposed an indeterminate l i f e sentence with a 300-month minimum for the Murder conviction, and concurrent determinate sentences of 18

2 - OPINION AND ORDER

and

60

months,

respectively,

on

the

weapons

convictions.

Respondent's Exhibit 101.

Restitution in the amount of $68,569.56 Respondent's

was also ordered payable to the v i c t i m ' s mother. Exhibit 108; Respondent's Exhibit 109, p. 2. Peti tioner took a direct appeal, but

the Oregon Court

of

Appeals affirmed the t r i a l court without opinion, and the Oregon Supreme Court denied review.
State v. Navarro, 206 Or. App. 521,

138 P.3d 62, rev. denied, 241 Or. 392, 143 P.3d 544

(2006). ("PCR") in The

Petitioner next filed for post-conviction relief U m a t i l l a C o u n t y w h e r e t h e PCR t r i a l

court denied relief.

Oregon Court of Appeals granted the S t a t e ' s Motion f o r Summary Affirmance and the Oregon Supreme Court denied review.

Respondent's Exhibits 128, 130, 131. Peti tioner filed his federal Petition for Writ of Habeas

Corpus on November 7, relief: 1.

2008 and r a i s e s the following grounds for

The t r i a l court e r r e d when i t imposed r e s t i t u t i o n without submitting the amount of the r e s t i t u t i o n to a jury for findings beyond a reasonable doubt; Police officers failed to advise petitioner of his r i g h t under A r t i c l e 36 of the Vienna Convention to request assistance from the Mexican Consulate; and T r i a l counsel was c o n s t i t u t i o n a l l y i n e f f e c t i v e when he failed to investigate and properly prepare for trial. asks the court to deny r e l i e f on the Petition

2.

3.

Respondent

b e c a u s e : ( 1 ) G r o u n d One w a s n o t f a i r l y p r e s e n t e d t o O r e g o n ' s c o u r t s

3 - OPINION AND ORDER

and i s now p r o c e d u r a l l y d e f a u l t e d ;

(2)

p e t i t i o n e r ' s G r o u n d Two

claim based upon the Vienna Convention i s not the subject of any clearly established federal law and therefore cannot e n t i t l e him to habeas corpus relief; and (3) the state court decision on

p e t i t i o n e r ' s Ground Three claim i s e n t i t l e d to deference. DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall not be

granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary t o , or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "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).

A

state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence.
A state court decision

28 U.S.C.
is

§

2254(e) (1)
to clearly

"contrary

established

precedent

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
v.

at

a

result

different 362,

from

[that] (2000).

precedent."

Williams

Taylor,

529 u.S.

405-06

4 - OPINION AND ORDER

Under t h e " u n r e a s o n a b l e a p p l i c a t i o n " c l a u s e , a f e d e r a l h a b e a s c o u r t may grant relief "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."
Id at 413.

The "unreasonable application" clause requires

the s t a t e court decision to be more than incorrect or erroneous.
Id at 410.

The s t a t e c o u r t ' s a p p l i c a t i o n of c l e a r l y e s t a b l i s h e d
Id at 409.

law must be objectively unreasonable.
II. Unargued Claims

P e t i t i o n e r does not provide argument i n support of Grounds One a n d Two o f h i s P e t i t i o n , n o r d o e s h e a t t e m p t t o r e f u t e t h e S t a t e ' s arguments in i t s Response t h a t these claims do not e n t i t l e him to relief. claims The court has nevertheless reviewed p e t i t i o n e r ' s unargued on the existing record and determined that
See 28 U.S.C.
§

they do not

e n t i t l e him to r e l i e f .

2248

("The allegations of

a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, i f not traversed,

shall be accepted as true except to the extent that the judge finds from the evidence that they are not t r u e . " ) ;
Woodford, see also Silva v.

279 F.3d 825, 835 (9th Cir. 2002)

(petitioner bears the

burden of proving his claims).

III III III
5 - OPINION AND ORDER

III. G r o u n d T h r e e : I n e f f e c t i v e A s s i s t a n c e o f T r i a l C o u n s e l A. Expansion of the Record

According to petitioner,

t r i a l counsel was c o n s t i t u t i o n a l l y

i n e f f e c t i v e when he f a i l e d t o properly i n v e s t i g a t e h i s case and call Erika Guerrero, petitioner's former girlfriend, as a defense witness to rebut the prosecution's theory that petitioner killed the victim intentionally In a jealous rage over competing

a f f e c t i o n s f o r Ms.

Guerrero.

To s u p p o r t h i s c l a i m o f a t t o r n e y

error, petitioner asks the court to consider Petitioner's Exhibit A, a d o c u m e n t w h i c h h e d i d n o t p r e s e n t t o O r e g o n ' s s t a t e c o u r t s . P e t i t i o n e r ' s E x h i b i t A c o n s i s t s o f a D e c l a r a t i o n f r o m Ms. G u e r r e r o in which she explains her relationship with Ochoa-Garibay. Where, as h e r e , a p r i s o n e r wishes t o i n t r o d u c e new evidence i n the absence of an evidentiary hearing, requirements of 28 U.S.C.
§

the evidentiary hearing
Holland

2254(e) (2) nevertheless apply.

v. Jackson, 124 S.Ct. 2736, 2738 (2004); Cooper-Smith v. Palmateer,

397 F.3d 1236, 1241-42 (9th Cir. 2005).

Accordingly, i f petitioner

has f a i l e d t o develop h i s claim i n the s t a t e c o u r t s , he may only supplement the record i f his claim relies on: 1) a new r u l e o f

c o n s t i t u t i o n a l law, made r e t r o a c t i v e to cases on c o l l a t e r a l review by the Supreme Court, t h a t was previously unavailable; or 2) a

factual predicate that could not have been previously discovered through the e x e r c i s e of due d i l i g e n c e . 28 U.S.C. and ( i i ) .
§

2 2 5 4 ( e ) ( 2 ) (A) ( i )

He m u s t a l s o d e m o n s t r a t e t h a t t h e f a c t s u n d e r l y i n g t h e

6 - OPINION AND ORDER

claim a r e s u f f i c i e n t t o e s t a b l i s h b y c l e a r a n d c o n v i n c i n g e v i d e n c e t h a t no reasonable f a c t f i n d e r would have found him g u i l t y of the underlying o f f e n s e . 28 U.S.C.
§

2254 (e) (2) (B).

P e t i t i o n e r o b v i o u s l y knew Ms. G u e r r e r o w e l l b e f o r e he f i l e d h i s PCR a c t i o n , t h u s h e c o u l d h a v e o b t a i n e d h e r D e c l a r a t i o n l o n g a g o a n d p r e s e n t e d i t t o t h e PCR t r i a l c o u r t f o r c o n s i d e r a t i o n . P e t i t i o n e r o f f e r s no e x p l a n a t i o n as t o why he d i d not do so. As

petitioner failed to develop his Exhibit A in preparation for his PCR
§

trial,

he

cannot

meet

the

diligence the

requirement not

of

2 2 5 4 ( e ) ( 2 ) (A) ( i i ) .

Accordingly, See Holland,

court will

consider

P e t i t i o n e r ' s E x h i b i t A.

542 u . s . a t 652

("whether a

s t a t e c o u r t ' s decision was unreasonable must be assessed in l i g h t of the record the court had before i t . " ) .
B. The Merits

Because no Supreme Court precedent i s d i r e c t l y on point t h a t corresponds to the facts of this case, the court uses the general two-part test the Supreme Court has established to determine

whether petitioner received ineffective assistance of counsel.
Kn owl e s v.
Mi

r z a ya n c e ,

12 9

S.

Ct .

1 4 11 ,

14 1 9

( 2 0 0 9) .

First,

p e t i t i o n e r must show t h a t his lawyer's performance f e l l below an objective standard of reasonableness. 466 u.S. 668, 686-87 (1984). counsel's performance,
Strickland v. Washington,

Due t o t h e d i f f i c u l t i e s i n e v a l u a t i n g strong presumption

courts must indulge a

7 - O P I N I O N AND ORDER

that

the

conduct

falls

wi t h i n

the

"wide

range

of

reasonable

professional assistance." Second,

Id at 689.

p e t i t i o n e r must show t h a t h i s

lawyer's performance for prejudice is a is

prej udiced the defense. whether the defendant but

The appropriate t e s t can for show "that there

reasonable errors, the

probabili ty that,

counsel's

unprofessional

result of the proceeding would have been different."

Id at 694.

A reasonable probability i s one which i s sufficient to undermine confidence 1n the outcome of the trial.
Id

at

696.

When

Strickland's general

standard is

combined with the

standard of

review governing 28 U.S.C. § 2254 habeas corpus cases, the r e s u l t is a "doubly deferential judicial review." at 1420. According to petitioner, counsel should have called Guerrero as a witness in order to rebut the prosecution's theory that Mirzayance, 129 S.Ct.

p e t i t i o n e r was enraged because Ochoa-Garibay broke up p e t i t i o n e r ' s relationship with Guerrero. He b e l i e v e s t h a t h a d t h e j u r y h e a r d

Guerrero t e s t i f y t h a t she was not romantically involved with OchoaGaribay, there 1S a significant likelihood that it would have

convicted him on the l e s s e r included offense of Manslaughter, and found him not guilty of Murder. The PCR t r i a l court made the

following findings with respect to this claim: Well, I really believe Petitioner's case is a reach. This i s a very unfortunate circumstance, obviously, one t h a t ' s a l i t t l e - - somewhat unusual, no doubt. But I

8 - O P I N I O N AND ORDER

think P e t i t i o n e r ' s c a s e i s b a s e d o n s p e c u l a t i o n t h a t i s grounded in hindsight. Under the law, the Court must look at the case the t r i a l attorney's perspective as well as theories grounded on hindsight, and I think the attorney's performance falls well within the broad of reasonable legal representation, reasonable defense. from these trial range legal

T h e c a s e l a w c o m p e l s me t o f i n d t h a t P e t i t i o n e r h a s really failed to meet his burden of proof here. So, for those reasons, among o t h e r s , the p e t i t i o n for p o s t conviction r e l i e f i s denied, and I ' l l sign an order to t h a t e f f e c t r i g h t now. Respondent's Exhibit 123, pp. 30-31. A review of the record in this case reveals that petitioner p r o v i d e d t h e PCR t r i a l c o u r t o n l y w i t h h i s own d e p o s i t i o n t e s t i m o n y in support of this claim, and a police report documenting

statements Guerrero made to o f f i c e r s t h a t she did not have any romantic however, relationship with Ochoa-Garibay. Peti tioner did not, PCR t r i a l

present any declaration or affidavit to the

c o u r t i n w h i c h G u e r r e r o m a d e s w o r n s t a t e m e n t s a b o u t how s h e w o u l d have t e s t i f i e d i f called at t r i a l . 139, 148-49, criminal 41 P . 3 d 1 1 2 7 is not (2002)
See Horn v. H i l l , 180 Or. App.

("Where evidence omitted from a in
a

trial

produced

post-conviction see also

proceeding .
Dows v .

i t s omission cannot be prejudicial"); 486-87 (9th Cir. 2000)

Wood, 211 F.3d 480,

(petitioner's

self-serving affidavit regarding potential testimony of another is insufficient to prove ineffective assistance of counsel). Without

k n o w i n g how G u e r r e r o w o u l d h a v e t e s t i f i e d , p e t i t i o n e r c a n n o t s h o w

9 - OPINION AND ORDER

prejudice. 2001)

See Wildman v.

Johnson,

261 F.3d 832,

839

(9th Cir.

(Speculation about what a lay witness would say i f called to

testify i f called does not establish prejudice) . In any event, at the time he shot Ochoa-Garibay as well as the aftermath when he was interviewed by p o l i c e , p e t i t i o n e r believed the victim had interfered in his romantic relationship with

Guerrero.

Respondent's Exhibit 119, p. 25.

Whether Ochoa-Garibay

actually did, in fact, cause Guerrero's breakup with petitioner is not relevant to the inquiry of whether petitioner intentionally killed Ochoa-Garibay because petitioner, Ochoa-Garibay was culpable. himself, believed that

Accordingly, counsel was under no duty

to show t h a t p e t i t i o n e r was operating under a misapprehension when he shot Ochoa-Garibay as he walked away from the f i g h t , nor can

petitioner demonstrate that the outcome of his t r i a l would have been different had Guerrero testified. For all of these reasons, the PCR trial court did not

unreasonably apply Strickland to the facts of petitioner's case when i t denied r e l i e f on t h i s claim.

III III III III III III
1 0 - OPINION AND ORDER

CONCLUSION

For the reasons identified above, Habeas Corpus (#2) is DENIED. The

the Petition for Writ of declines to issue a

court

C e r t i f i c a t e of Appealability on the basis t h a t p e t i t i o n e r has not made a s u b s t a n t i a l showing of the denial of a c o n s t i t u t i o n a l r i g h t pursuant t o 28 U.S.C. I T I S SO ORDERED. DATED t h i s
§

2253(c)(2).

~

day of April, 2010.

~/11~

1 1 - OPINION AND ORDER