EDWARD C. REED, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision on the remaining claims and on petitioner's motion (#67) for partial dismissal.
Petitioner Mario Lopes-Benitez seeks to set aside his December 4, 2001, Nevada judgment of conviction, pursuant to a jury verdict, of sexual assault of a minor under the age of fourteen. Petitioner challenged his conviction both on direct appeal and state post-conviction review.
The evidence presented at trial tended to establish the following.
At the time of the trial, Lopes-Benitez was charged with one count of sexual assault of a minor under the age of fourteen and one count of first-degree kidnapping.
The victim, R.M., was thirteen-years old at the relevant time. According to her mother's testimony, introduced over defense objection, R.M. had been deaf and mute since the age of fourteen months as a result of spinal meningitis. She also suffered from frequent seizures as a result and required twenty-four hour supervision. She attended a special school for challenged children and was able to communicate only through rudimentary sign language.
The registered nurse who assisted in the sexual assault examination, who previously had been a nurse practitioner in another jurisdiction, testified, without objection, that the case was very distinctive in her recollection because R.M. was mentally delayed.
During the late afternoon of March 15, 2001, after 5:30 p.m., R.M. was out sweeping in the front of the house with the front door open with R.M.'s mother and an older sister monitoring from inside. At one point, her mother retrieved some medication from another room in the house for some friends who had called. When she looked back out front, at about 5:50 p.m., R.M. was no longer there. When she and the sister could not find R.M., a number of family members and friends went looking for her in the neighborhood. Fairly quickly, they flagged down police officers, who also began searching door to door in the neighborhood.
As the search continued, R.M.'s mother and her sister-in-law, Sandra Mariscal, saw a white van coming toward them and then make a turn down another street. As the van turned, R.M.'s mother heard her scream. She testified initially that R.M. would scream like that when she was upset but she testified thereafter that "she could be excited or she could be upset, but at that point she probably was excited to see me." Mariscal had not heard R.M. scream that loudly before. #20, Ex. 6, at 40-43 & 83-88; id., Ex. 7, at 21-22, 35-38.
R.M.'s mother and Mariscal ran after the slow-moving van, which eventually came to a stop. The van was being driven by Lopes-Benitez. R.M. had been inside in the passenger seat. She exited as the women approached, holding a grocery bag with soup packets.
While petitioner has sought to maintain herein that R.M. was in an overall happy state at this time, neither R.M.'s mother nor Sandra Mariscal so testified. R.M.'s mother testified only that R.M. was happy to see her and Mariscal. Happiness or relief at seeing her mother was not necessarily the same thing as then being in an overall state of happiness. Sandra Mariscal — who reached the van and R.M. first — affirmatively testified that R.M. was not in a state of happiness when they encountered her. Mariscal testified that R.M. made her sign for pain, pointed to her private area, and pointed to Lopes-Benitez. According to Mariscal, when R.M. was sad, she would not cry but would have a certain sad face, which she had then.
Standing at the passenger side of the vehicle, R.M.'s mother initially thanked Lopes-Benitez for bringing her daughter back. However, when Lopes-Benitez said that R.M. had asked him for a ride, her mother replied that that was "stupid" because R.M. could not speak. She then started asking him what he had done to her daughter. Without asking, R.M.'s mother got up into the van directing him to drive to her nearby house to see the police. She then saw her adult son Jesus, and they switched places with the mother exiting the van. R.M.'s mother then walked back to the house with R.M. and Mariscal while Jesus rode in the van directing Lopes-Benitez to the house. As the women approached the house, they told the police that they had found R.M.; and they tried to direct their attention, speaking in Spanish to English-speaking officers, to the man in the van.
The police started separating the various parties so that they could be interviewed individually. Before the lead officer instructed them to not do so, R.M. went into the restroom with her mother and urinated. R.M. indicated to her mother that she was experiencing pain when she urinated. Police officers interviewed the witnesses other than R.M. through a bilingual officer.
After the interviews of the family members, R.M. was taken to the hospital for a sexual assault examination. At the hospital, the lead officer conducted a limited interview of R.M. He asked her questions through a bilingual family member who then relayed the question to R.M.'s mother in Spanish who then asked R.M. the question using her rudimentary signs.
As discussed in greater detail, infra, Dr. Michael Zbiegien, M.D., examined R.M. for suspected sexual assault. Dr. Zbiegien's examination reflected, inter alia, a fresh tear and bruising of the hymen at the 6 o'clock position and the presence of seminal fluid. He opined that R.M. had been a virgin previously and had been subjected to penile penetration.
Back at the neighborhood, a police officer gave Lopes-Benitez the Miranda advisements and interviewed him. Lopes-Benitez — who was 39 years old at the time
Thereafter, after the sexual assault examination, the lead officer transported R.M. and a family member back to the neighborhood. Lopes-Benitez no longer was present at this point, but the van still was present. The officer brought R.M. to the van and asked her through sign language and through the family member to point to where the incident occurred. R.M. initially refused to look at the van. Ultimately, she looked into the van, and she pointed to a white box in the back end of the van.
The State and defense stipulated at trial that the crime scene analyst who examined the van would testify that he did not find any evidence of seminal fluid during forensic examination of the interior of the van, including the back cargo area.
As noted previously, however, seminal fluid was found during the sexual assault examination. DNA analysis of sperm cells in seminal fluid recovered from the inner lining of R.M.'s underwear reflected that the cells "did originate from Mario Lopez-Benitez."
At trial, in addition to testimony as to the foregoing, the State, over defense objection, put R.M. on the stand. The State put R.M. on the stand not as a competent witness to testify as to what occurred but instead as a demonstrative exhibit as to her capacity and ability to communicate. She was asked questions through a sign interpreter. R.M. was able to answer questions through the sign language interpreter seeking her name, her mother's name, her age, the number but not the street of her home address, and whether she went to school. She did not give clear or significantly meaningful answers — through the sign language interpreter — and/or did not know the answer to questions as to where she went to school, what her birthday was, what she studied in school, how to get to her house, or how she got to court that morning.
The sign language interpreter later testified as a witness in her own right. She had acted as an interpreter with R.M. during prior interviews at the prosecutor's office and at the trial. She testified that R.M. was only a minimal language user with respect to formal sign language and that she used only informal homegrown signs that were familiar only to her and her family and school friends. The interpreter was unable, despite being a qualified interpreter, to have a meaningful conversation with the thirteen year old. She acknowledged, however, that R.M. would have been capable of making common generic gestures to a stranger, such as wanting something to drink, waving hello or goodbye, or blowing kisses.
During the State's case-in-chief, defense counsel elicited testimony from R.M.'s mother on cross as to whether R.M. folded her clothes when she took off her school clothes in the afternoon. Her mother responded that she folded and hung up her clothes.
Lopes-Benitez did testify at trial. He elected to do so against the advice of defense counsel, who believed that his anticipated testimony would admit the commission of a crime with the thirteen year-old victim. Petitioner apparently advised counsel that he intended to testify during the lunch break after the State rested.
According to Lopes-Benitez' trial testimony, the following occurred. As he was pulling into the parking area at his home, he yielded to R.M. who was walking by. She then came and got into his van while laughing or smiling at him. After he parked, he asked her what she wanted, but she just kept on laughing. He did not think that she was underage.
As petitioner's account continued, when he opened the door to his apartment, R.M. motioned that she wanted something to drink, followed him in, went to the refrigerator, and got herself a soft drink and something to eat. She then rummaged around through his kitchen and apartment, eventually picking up a package of individual soup packets. Lopes-Benitez told her that she could take four packets.
Lopes-Benitez maintained that R.M. then motioned that she wanted to go to the restroom, went in without closing the door, just lowered her pants, and then was laughing and smiling at him while she used the restroom. When she came out, she did not pull her pants back up and went over and sat on the couch. She then removed her shoes, socks, pants, and underwear, folding her clothing neatly. Lopes-Benitez maintained that R.M. then put one leg up on the couch while she masturbated and blew kisses at him.
According to Lopes-Benitez, he began masturbating in response, from four or five feet away, without making contact with R.M. He maintained that when he ejaculated, he took a step and his semen landed on R.M.'s vagina. He denied touching R.M. or penetrating her.
Afterwards, R.M. got dressed again. Lopes-Benitez thereafter was giving her a ride to her house when they encountered her relatives. He asserted that he was giving her a ride because he was a gentleman and respected all women. According to Lopes-Benitez, R.M. was laughing when they saw her relatives on the way to her home. #21, Ex. 9, at 61-64, 75-76 & 89-93.
On cross-examination, Lopes-Benitez acknowledged that he had not told the police officer who interviewed him on the evening of the incident about any of these alleged events at his home. He acknowledged that the account that he instead had given to the officer was, with the exception of R.M. seeking a ride afterwards, in his words, "not true." He maintained that he did not tell the police about the alleged incidents at his home "because that was only to be told to the attorney."
On cross-examination, Lopes-Benitez also acknowledged from the stand that "the semen found in the case" was his.
Lopes-Benitez accordingly substantially confessed in his testimony to at the very least lewdness with a minor under fourteen years of age, a lesser but nonetheless still substantial offense under Nevada law. Alleged consent was not a defense to such an offense.
Petitioner was convicted of sexual assault with a minor under fourteen years of age but was acquitted of first-degree kidnapping.
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. 131 S.Ct. at 1411. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court based on the record presented to the state courts; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 131 S.Ct. at 1398-1401.
A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9
To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9
Taylor v. Maddox, 366 F.3d 992, 1000 (9
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. Pinholster, 131 S.Ct. at 1398.
In Ground 2, in the exhausted portions that remain, petitioner alleges that he was denied rights to a fair trial and to due process under the Fifth, Sixth and Fourteenth Amendments due to prosecutorial misconduct in the State's closing argument.
In the amended petition, Lopes-Benitez alleged that he was denied rights to, inter alia, a fair trial and due process by the following argument by the prosecution:
#17, at 10 (amended petition), quoting #22, Ex. 10, at 39, 40, 41 & 48.
The Supreme Court of Nevada summarily rejected this claim on direct appeal in a closing footnote, concluding that the assignment of error did not warrant relief.
The state high court's rejection of the exhausted claims alleged in the amended petition was neither contrary to nor an unreasonable application of clearly established federal law.
On federal habeas review of a state court conviction for constitutional error, the standard of review for a claim of prosecutorial misconduct, is "`the narrow one of due process, and not the broad exercise of supervisory power'" applied in federal criminal trials. See, e.g., Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "The 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.'" Id. (quoting Donnelly, 416 U.S. at 643).
Petitioner nonetheless relies in the main upon: (a) Supreme Court decisions that concern the exercise of supervisory power in federal criminal trials and that make no pertinent constitutional holding;
With regard to Supreme Court cases pertaining to federal criminal trials, the Supreme Court does not exercise supervisory authority over the state courts as it does over the federal courts. The high court can direct the manner in which federal criminal proceedings are conducted even in the absence of constitutional error, but it may not do so with regard to state criminal cases. See, e.g., Danforth v. Minnesota, 552 U.S. 264, 289 (2008). Thus, petitioner's citation to Supreme Court cases directed to the exercise of supervisory authority over federal prosecutors is unavailing.
A fortiori, the Supreme Court of Nevada clearly is not bound to follow a non-constitutional holding by a federal court of appeals regarding prosecutorial closing argument. Even if petitioner were to cite a Ninth Circuit case from a federal criminal case that was wholly indistinguishable with respect to the closing argument made, he would not carry his burden under AEDPA. The Supreme Court of Nevada is not a subordinate court to the Ninth Circuit. Nor is this case a federal criminal matter on direct appeal. Even if the Ninth Circuit reached a contrary conclusion on a constitutional issue regarding a prosecutor's closing argument, the Supreme Court of Nevada would not be bound to follow that decision, as petitioner instead must demonstrate under AEDPA that the state supreme court's decision was contrary to clearly established federal law as determined by the United States Supreme Court. Petitioner could cite a Ninth Circuit holding from a federal criminal case that was virtually on all fours with the present case, which he in fact has not done, and he would not carry his burden under AEDPA under established law.
With respect to prior holdings by the Supreme Court of Nevada, the state supreme court is the final arbiter of the application of Nevada state law standards to this case, and any arguendo violation of Nevada state law standards in any event is not cognizable on federal habeas review. To any extent that the cited state supreme court decisions arguendo made constitutional holdings, petitioner's burden under AEDPA again is to demonstrate an unreasonable application of prior United States Supreme Court constitutional holdings.
Petitioner's reliance upon the ABA Standards for Criminal Justice similarly is misplaced. ABA standards do not necessarily establish what the Constitution commands. See, e.g., Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983). The Supreme Court's citation to an ABA standard in a federal criminal case does not in any sense support a conclusion that the ABA standard constitutes a constitutionally-mandated standard applicable to the states.
Petitioner otherwise cites Supreme Court decisions that state a broad principle of due process framed in such generality that considerable leeway is left in its application to a particular case. As the Supreme Court observed in Harrington v. Richter:
131 S.Ct. 770, 786 (2011).
Petitioner cites Darden, supra, for the proposition that "[i]t also is improper for a prosecutor to disparage a defendant or his defense."
Petitioner further cites to cases that, over and above the generality of their due process discussion, if any, are far, far afield from this case.
In sum, other than a passing citation to the broad constitutional principle of Donnelly, petitioner essentially argues Ground 2 as if this case were an appeal of a federal criminal case heard on de novo review. This Court repeatedly has rejected similar presentations that in essence have sought to challenge a state court rejection of a constitutional claim regarding a state closing with argument and case authority in the main directed to a challenge to closing argument in a federal criminal trial decided on other than constitutional grounds.
Petitioner thus would not be able to establish a basis for federal habeas relief even if, purely arguendo, the "hard blows" struck by the prosecutor in the closing argument in this case would have resulted in a reversal under the broad standard of review in the exercise of supervisory power. Petitioner simply has failed to demonstrate that the state supreme court's rejection of his claim under the narrow standard of review instead applicable under the Due Process Clause was contrary to or an unreasonable application of clearly established apposite federal law as determined by the United States Supreme Court.
In this regard, petitioner urges that the prosecutor's statements "were the only evidence offered that tended to show Rosa Martinez's incompetence."
On the showing and argument made, the Court therefore holds that petitioner has failed to demonstrate that the state supreme court's rejection of his constitutional claims in Ground 2 that were exhausted and actually raised in the amended petition was either contrary to or an unreasonable application of clearly established federal law.
Petitioner further seeks to raise a new claim in the reply that was not presented in Ground 2 in the amended petition. It appears that petitioner is seeking to graft onto Ground 2 a claim that is based upon a ground that the Court held is time-barred.
As backdrop, the Court held that Ground 1 did not relate back to a timely-filed claim and thus was time-barred. In Ground 1, as amended, petitioner alleged that he was denied rights to a fair trial and confrontation under the Sixth and Fourteenth Amendments when the testimony of the victim was admitted as a demonstrative exhibit seeking to demonstrate that the victim was unable to communicate sufficiently to give consent to sexual activity with petitioner. The Court held that Ground 1 did not relate back to a claim in the original petition and therefore was untimely.
In the reply, petitioner added new factual allegations to Ground 2 referring to entirely different portions of the State's closing from the portions quoted and challenged in Ground 2 in the amended petition. As outlined supra, in Ground 2 of the amended petition, petitioner based the claim on the prosecutor's comments challenging Lopes-Benitez' account of the events maintaining that the victim engaged in consensual sexual activity. In the reply, in contrast, petitioner sought to premise the claim in addition on entirely different portions of the argument in which petitioner contends that the prosecutor improperly testified, by way of his closing argument, as to the victim's mental capacity.
Petitioner thereafter presents the substantive legal argument that would have been presented in support of Ground 1 had it not been dismissed as untimely. That is, petitioner urges that the victim improperly was placed on the stand as a demonstrative exhibit without a meaningful opportunity for the defense to conduct cross-examination.
At the outset, to the extent that this new claim that petitioner seeks to append to Ground 2 in the reply relies upon the Confrontation Clause, the claim in all events no longer is before the Court. Petitioner has abandoned any Confrontation Clause claims in Ground 2 following upon the Court's holding that such claims are unexhausted.
To the extent that this new appended claim instead relies upon an alleged denial of petitioner's rights to due process and a fair trial, petitioner may not use the federal reply to amend the petition. See, e.g., Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994). The only way to add what in truth is a new claim to Ground 2 is by a properly-filed amended petition. At this juncture, under Rule 15(a) of the Federal Rules of Civil Procedure, petitioner can amend the petition only with respondents' written consent or by obtaining leave of court to amend. Significantly, neither was obtained, despite repeated rejections by this Court of similar attempts by the Federal Public Defender in prior habeas cases to de facto amend the petition by adding claims in the reply. Of course, at this juncture, petitioner would face a steep hill in seeking to demonstrate on a motion for leave that such amendment would not be futile due to lack of exhaustion and/or untimeliness.
In this regard, it is established law that federal habeas pleading is not notice pleading. A petitioner instead must allege the operative facts upon which he bases his claim with particularity in the petition. E.g., Mayle v. Felix, 545 U.S. 644, 655-56 (2005). The operative facts of the new appended claim were not alleged in Ground 2 in the amended petition, which was prepared by counsel. Absent grant of a motion for leave to amend, the appended claim is not properly before the Court.
Petitioner may not circumvent the Court's prior order dismissing Ground 1 as untimely by appending essentially a recast version of the claim to another claim in the reply. Petitioner instead must "come in through the front door" by either overturning the prior holding on appeal, presenting a viable basis for reconsideration of the prior order, and/or establishing a viable basis for amendment of the pleadings to add the recast claim.
Ground 2 does not provide a basis for federal habeas relief.
In Ground 3(A)(1), petitioner alleges that he was denied effective assistance of trial counsel when counsel allegedly failed to investigate his claim that he did not sexually assault the victim. Petitioner alleges principally that counsel failed to investigate the consistency between his testimony that the victim allegedly removed and neatly folded her clothing and her mother's testimony that she folds her clothes when she undresses.
After stating the governing legal standard, the Supreme Court of Nevada rejected the claim presented to that court on the following basis:
#24, Ex. 55, at 3.
The state supreme court's rejection of this claim was neither contrary to nor an unreasonable application of clearly established federal law.
On a claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's defective performance caused actual prejudice. On the performance prong, the issue is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from his perspective at the time. The court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).
While surmounting Strickland''s high bar is "never an easy task," federal habeas review is "doubly deferential" in a case governed by the AEDPA. In such cases, the reviewing court must take a "highly deferential" look at counsel's performance through the also "highly deferential" lens of § 2254(d). Pinholster, 131 S.Ct. at 1403 & 1410.
In the present case, even following review of the federal reply, this Court is no more edified than was the Supreme Court of Nevada as to "what additional effort counsel should have undertaken to pursue this point or how focusing the jury's attention on this evidence might have changed the result of the trial."
Petitioner maintains that the mother's testimony that R.M. folded her clothes "confirmed" Lopes-Benitez' defense.
The alleged clothes folding thus was hardly the rock upon which the State's case would crash, founder, and sink. If defense counsel had further "addressed" the point in some unspecified manner as petitioner urges that he should, counsel reasonably probably would have generated a ready and effective retort from the State. The prosecution quite likely would have responded that Lopes-Benitez had told the police one thing prior to there being a DNA report but then told the jury an entirely different story after the DNA evidence established that his sperm was recovered during the sexual assault exam.
Especially under the applicable doubly deferential standard of review, the state high court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland.
Ground 3(A)(1) thus does not provide a basis for habeas relief.
In Ground 3(A)(1)(a), petitioner alleges that he was denied effective assistance of trial counsel when counsel allegedly failed to investigate the victim's mental capacity and ability to communicate, including: (i) failing to challenge testimony by the victim's mother in which the mother allegedly "was permitted to speculate that her daughter had been assaulted — not because [R.M.] told her — but because [R.M.] indicated pain while urinating;" (ii) failed to investigate or conduct interviews regarding the victim's ability to communicate through rudimentary signs; and (iii) failed to argue that the victim's affect after the incident was inconsistent with that of a victim and failed to argue that Lopes-Benitez' actions after the incident were indicative of innocence.
The state supreme court rejected the claims in that court on the following grounds:
#24, Ex. 55, at 3-4.
The state supreme court's rejection of these claims was neither contrary to nor an unreasonable application of Strickland.
Just as with federal habeas pleading, a Nevada state post-conviction petition must be supported by specific factual allegations. See, e.g., Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). Alleging merely that trial counsel failed to pursue an avenue of investigation without also presenting specific factual allegations tending to establish that such investigation in fact would have yielded material exculpatory evidence does not establish a basis either for an evidentiary hearing or for relief. Similarly, alleging that counsel failed to further challenge objected-to testimony in some additional unspecified fashion fails to present a basis either for an evidentiary hearing or relief. Nor does merely alleging that defense counsel should have placed more emphasis on evidence that in fact was before the jury.
Turning to the particular portions of the claim, petitioner's allegation that the mother was permitted to speculate that her daughter had been assaulted because she indicated pain while urinating is belied by the record.
Petitioner alleges that this testimony occurred in the following manner:
#17, at 13 (amended petition); see also #65, at 17-18 (same representation in reply).
At trial, the mother testified, first, that she told her son Jesus — as she was getting him to switch places with her in the van to make sure that Lopes-Benitez drove the van to the house where the police were — that "[h]e did something to [R.M.]." This obviously occurred before R.M. went with her mother into the bathroom and urinated because they were not even back at the house yet. There is nothing, absolutely nothing, on page 47 of the transcript involving R.M. reporting pain while urinating — as a basis for speculation or otherwise — because that event had not even occurred as of the time that the mother made the statement to Jesus. Furthermore, defense counsel did object to the mother's speculative statement to Jesus, the objection was sustained, and the testimony was stricken as speculative.
Nearly 50 pages later in the trial transcript, at page 94, the victim's mother testified that R.M. indicated pain to her while urinating. There is no testimony in the portion of the transcript cited by petitioner in support of this claim by the mother speculating that R.M. was sexually assaulted because R.M. indicated pain while urinating. The mother testified — only — that R.M. indicated pain while urinating.
This attempted splicing together of widely-separated testimony — regarding events clearly separated by time — in an effort to present a witness as saying something that she did not in fact say is not persuasive. Basing argument on a mischaracterization of the record is singularly unpersuasive. Furthermore, the speculative prior statement that the witness did make, albeit not as represented herein, was objected to by counsel and was stricken. The mother's testimony that R.M. reported pain clearly was admissible. N.R.S. 51.105(1).
This first portion of the claim thus is wholly baseless as it indisputably is refuted by the state court record.
The second portion of the claim was not supported by specific factual allegations in the state courts tending to demonstrate prejudice. Petitioner alleged only conclusorily that counsel should have investigated or conducted interviews regarding the victim's ability to communicate. However, allegations, for example, only that counsel "should have interviewed or consulted with a mental health specialist or doctor, [R.M.'s] teachers, social workers, and language specialists that worked with [R.M.]"
In the third portion of the claim, petitioner alleges that counsel was ineffective for failing to argue that the victim's affect after the incident was inconsistent with that of a victim and failing to argue that Lopes-Benitez' actions after the incident were indicative of innocence.
With regard to the victim's affect, petitioner ignores trial evidence that completely undercuts the argument. R.M.'s mother testified not that R.M. was in a generally happy state when she exited the van. She instead testified that R.M. was happy to see her. Even worse for the defense, Sandra Mariscal testified that R.M. was in a generally sad state when she exited the van and further that she made her sign for pain while pointing to her private area and then to Lopes-Benitez.
With regard to his own actions allegedly indicative of innocence, petitioner maintains that he "willingly drove [R.M.'s] brother back to the family residence," "willingly took the police to his home to produce his identification," and "voluntarily stayed with the police until his arrest later that night." #17, at 14.
However, the evidence at trial instead supported an inference that Lopes-Benitez in truth was not being given much of a choice after the family ran his van down with the police nearby. R.M.'s mother got up into the van without asking after first thanking and then confronting Lopes-Benitez, started directing petitioner to drive to her house where the police were, and then had her adult son take over from her to make sure that Lopes-Benitez drove to the house. As Jesus testified, if Lopes-Benitez had not complied there would have been a fight, all with the police nearby within hailing distance. Any inference that Lopes-Benitez instead drove to the house where the police were wholly of his own volition was a quite tenuous one indeed.
Similarly, there was no testimony elicited from a police officer that Lopes-Benitez was fully free to leave but instead willingly and voluntarily stayed to assist the officers. As petitioner's counsel no doubt is aware, a suspect can be not free to leave even prior to being formally "under arrest." None of the testimony cited by petitioner affirmatively establishes that he could have left at any time after first interacting with the police officers but himself chose to stay. His own self-serving testimony at trial clearly did not conclusively establish such.
The lead officer instead testified that, upon being advised by the family that they had found R.M. and that the suspect that they had found her with was in the van, he radioed the officer at the house to "hold that van."
Any inference of innocence from Lopes-Benitez being directed by an adult male family member to the house and then not trying to leave arguably readily apparent police custody thus was marginal at best. Moreover, the undisputed fact that Lopes-Benitez then lied to the police about the incident utterly negated any such marginal inference of innocence. Lying to the police is not "action indicative of innocence" but instead supports a strong inference of culpability. Remaining silent of course supports no such inference, but lying to the police in an effort to cover up an incident does strongly support such an inculpatory inference.
Accordingly, arguing that petitioner's actions were indicative of innocence merely was another exceedingly weak argument that then left the defense open to a strong comeback argument by the State. The state supreme court's rejection of this portion of the claim thus also clearly was neither contrary to nor an unreasonable application of Strickland.
Petitioner urges that he sustained prejudice on these claims because "he was denied his right to have competent counsel represent his interests during this vital stage of the proceedings."
On the allegations and evidence before the state courts, and under the applicable doubly deferential standard of review, petitioner has failed to demonstrate that the state supreme court's rejection of these claims was contrary to or an unreasonable application of clearly established federal law.
Ground 3(A)(1)(a) therefore does not provide a basis for federal habeas relief.
In Ground 3(A)(1)(b), petitioner alleges that he was denied effective assistance of trial counsel when counsel allegedly failed to "investigate or inquire" into the location of sperm cells and DNA evidence.
As outlined in the factual recital, DNA from sperm cells recovered from the inner lining of the victim's underwear matched Lopes-Benitez' DNA. Analysis of the DNA of sperm cells recovered from dried seminal fluid on her body outside her vagina did not exclude Lopes- Benitez. Analysis of the samples recovered from internal vaginal swabs were positive for the presence of semen, but the DNA analysis was inconclusive as to this sample because too few sperm cells were recovered by the swabs to produce DNA test results.
Petitioner alleges that counsel failed to "investigate the location of the sperm cells and the DNA evidence" in some unspecified fashion; failed to "address the DNA testimony in the context of the mother's inappropriate testimony" "that she believed her daughter had been raped," again with the manner of "addressing" the testimony being unspecified; and failed to question the examining physician as to "whether the small number of sperm cells in the vaginal cavity could be explained by a masturbating woman transferring semen from a male's ejaculating onto her."
The state supreme court rejected the claims in that court on the following grounds:
#24, Ex. 55, at 3-4.
The state supreme court's rejection of these claims was neither contrary to nor an unreasonable application of Strickland.
The testimony of the examining physician, Dr. Michael Zbiegien, M.D., was incompatible with petitioner's theory that the victim introduced sperm into her vagina that had been ejaculated onto her body by Lopes-Benitez by herself masturbating. The vaginal swabs were taken deep in the vagina, "as far up into the vagina as comfortable to the patient," and were approximately six inches long.
It not only is speculative, but further is not reasonably likely given the physician's other testimony, that trial counsel would have secured a response favorable to the defense if counsel had asked Dr. Zbiegien directly whether the victim could have introduced the semen into her vagina through masturbation. However, even more to the point, petitioner's victim-masturbation theory does not explain the tearing and bruising of the hymen, given that Dr. Zbiegien ruled out self-inflicted injury. Against the backdrop of the testimony at trial, the state supreme court's rejection of this claim clearly was not an objectively unreasonable application of Strickland.
The state supreme court's rejection of petitioner's vague claims that trial counsel additionally should have further investigated or "addressed" the forensic testimony regarding DNA and sperm cells in some as-yet unspecified fashion also was neither contrary to or an unreasonable application of Strickland.
This conclusion follows with even greater force regarding the claim based upon counsel's failure to "address" the DNA testimony, also in as-yet unspecified fashion, "in the context of" the mother's testimony that she believed her daughter had been raped. Petitioner points to page 34 of the transcript of the mother's testimony. She testified there — regarding the time shortly after they had found out that R.M. was missing and family members and friends were starting the search — that she began to cry because "I thought that maybe she had been raped." Defense counsel — immediately — objected. The court sustained the objection, struck the testimony, and instructed the jury to not join in such speculation. The court made the percipient admonition that the jury simply could take into account that the mother was upset following upon her daughter being missing. #20, Ex. 6, at 35-35.
This Court is at a loss as to how this remark — which immediately was objected to, was struck, and resulted in an instruction to the jury — had the irrevocable prejudicial impact that petitioner attributes to it. The mother's statement that "I thought that maybe she had been raped" was made regarding a point in time when all that she then knew was that her daughter was missing. The statement in truth reflected nothing more than the depth of feeling of a mother's concern for a missing daughter. She clearly was making no statement that she then knew facts that her daughter had been raped or, more to the point, that the then as-yet unmet Lopes-Benitez had committed an offense. Juries — as well as reviewing courts — have the basic common sense to appropriately discount such an expression of the depth of feeling of a mother's concern as in truth having no probative value. The jury in this case in any event was instructed to disregard the remark and to only consider that she was upset.
The Court further is at a loss as to how trial counsel could have or should have "addressed" the DNA evidence "in the context" of the mother's statement. Again, counsel immediately objected to the remark, which was stricken with an instruction to the jury. The Court cannot fathom what counsel could have or should have done vis-à-vis the DNA evidence that further would have addressed a remark that he already had objected to, that had been stricken, and as to which the jury had been instructed to disregard. Further to the point, petitioner has not identified what counsel should have done in this regard that would have had a reasonable probability of altering the outcome at trial.
Ground 3(A)(1)(b) does not provide a basis for federal habeas relief.
In Ground 3(C)(1), petitioner alleges that he was denied effective assistance of trial counsel when counsel allegedly failed to present an adequate defense at trial by failing to present witnesses or evidence supporting a claim of consensual sexual conduct.
The state supreme court rejected the claim presented to that court on the following grounds:
#24, Ex. 55, at 3-4.
The state supreme court's rejection of this claim was neither contrary to nor an objectively unreasonable application of Strickland.
In Ground 3(C)(1), to the extent that the claim has any specificity, petitioner makes essentially the same argument that he made in Ground 3(A)(1) — that counsel should have "addressed" in some unspecified manner the alleged fact that R.M. folded her clothes after allegedly removing them in his home.
The Court's discussion as to Ground 3(A)(1) applies fully here as well.
Petitioner does not specify what else should have been done by counsel to somehow further "address" the alleged folding of the clothes. Lopes-Benitez' account of the alleged clothes-folding was directed to a time when he and the victim allegedly were alone in his home, so it is difficult to conceive how counsel would have developed evidence corroborating his clothes-folding testimony. Further, the mother's testimony in truth did not "confirm" Lopes-Benitez' testimony because she testified first and he had given no prior external consistent statement as to any such clothes-folding, or, indeed, as to R.M. even being in his home. Accordingly, if defense counsel had focused on the point in closing argument, the State then only would have further emphasized the fact that Lopes-Benitez had told the police one thing prior to the results of the DNA analysis and the jury quite another thereafter. The allegedly "confirming" fact of the victim's clothes folding was readily dismissed as an after-the-fact embellishment on a story given by Lopes-Benitez only after hearing all of the State's evidence, including the mother's testimony. As the Court observed as to Ground 3(A)(1), the alleged clothes folding was hardly the rock upon which the State's case would crash, founder, and sink. See text, supra, at 18-21.
Petitioner further urges that he argued in the state courts that counsel was ineffective for failing to call specific witnesses and that he also argued that counsel should have investigated the victim's ability to communicate. However, in the portions of the briefing cited by petitioner, he in fact argued only that, e.g., counsel should have interviewed "teachers, social workers, or language specialists who, potentially deal with [R.M.] on a daily basis."
Petitioner maintains on these claims as well that he sustained prejudice because "he was denied his right to have competent counsel represent his interests during this vital stage of the proceedings."
Ground 3(C)(1) does not provide a basis for federal habeas relief.
In the exhausted portion of Ground 3(D) that remains, petitioner alleges that he was denied effective assistance when trial counsel did not object to alleged prosecutorial misconduct in the portions of the closing argument challenged in Ground 2.
The state supreme court rejected the claims presented to that court on the following grounds:
#24, Ex. 55, at 7-9 (footnotes citing state authorities and rejecting parallel substantive claim as procedurally defaulted omitted).
To the extent that the Supreme Court of Nevada held that the prosecutor's argument was not improper under Nevada state law, that is the final word on that issue. The Supreme Court of Nevada is the final arbiter of Nevada state law.
To the extent that the state supreme court held that some of the comments disparaging Lopes-Benitez' defense were subject to meritorious objection under state law, the court's further conclusion that there was not a reasonable probability of a different result at trial was not an objectively unreasonable application of Strickland.
To the extent that petitioner incorporates the federal law argument presented on the independent substantive claim in Ground 2, the Court's discussion supra as to Ground 2 also leads to the rejection of the ineffective assistance claim.
As discussed supra, petitioner in essence has presented the independent substantive claim in Ground 2 as if he were arguing a federal criminal case on de novo review under the broad standard of review of federal court supervisory power over federal prosecutors. United States Supreme Court and federal appellate court decisions outlining the requirements applicable to federal prosecutors under that broad standard of review do not define the constitutional limits placed on state prosecutors under the much narrower standard of review under the Due Process Clause. Nor do ABA standards state constitutional requirements. As discussed previously, petitioner has failed to demonstrate that the state supreme court's rejection of the independent substantive claim — on deferential AEDPA review — was contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court in apposite cases applying constitutional standards.
On the ineffective assistance claim in Ground 3(D), petitioner faces an even steeper hill. He must show not only (a) that the state supreme court's rejection of the underlying constitutional claim was contrary to or an unreasonable application of Supreme Court constitutional jurisprudence under the deferential AEDPA standard of review; but also (b) that the state supreme court's determination that there was not a reasonable probability that any failure to object to any arguendo constitutionally objectionable argument affected the outcome at trial also was neither contrary to nor an unreasonable application of Strickland. He has failed to demonstrate either herein.
The Court further reiterates, as discussed in Ground 2, that the prosecutor's argument as to the victim's capacity was grounded in evidence actually admitted at trial.
Finally, as with Ground 2, petitioner may not graft the dismissed Ground 1 — concerning the propriety of putting R.M. on the stand as a demonstrative exhibit — onto Ground 3(D) in an effort to circumvent the dismissal of Ground 1.
In Ground 3(F), petitioner alleges that he was denied effective assistance of counsel when trial counsel failed to address petitioner's alleged pretrial request to remove trial counsel and appoint new counsel.
The record tendered to the state courts reflected the following.
Petitioner's trial was scheduled for Monday, September 17, 2001, as the first case in the trial stack. In the week prior to the scheduled trial date, the parties engaged in potential plea negotiations. Lopes-Benitez declined the State's plea offer on September 13, 2001, the Thursday before the then-scheduled Monday trial date. When the trial judge stated that the case then would proceed to trial on the Monday, defense counsel David Grauman requested that the case instead proceed on the Tuesday, as he would be unavailable on the Monday. The court acceded to the request, while noting that it was leaving all of its Monday trials stacked behind the case.
On Tuesday, September 18, 2001, the matter came on for trial, but Grauman was ill that day. Assistant Public Defender Willard Ewing appeared in Grauman's stead. The court continued the trial to the next Monday, September 24, 2001, at 1:30 p.m., to allow Grauman sufficient time to recover and be ready for the start of trial.
Back at the office, Ewing sent an internal memo to Grauman. Ewing stated, first, that the judge had continued the trial date to the Monday and that "[t]his is a firm trial date as per the Judge." He further advised that Lopes-Benitez, "tried to make some comments in court today, but I stopped him until I knew what he wanted to say." The judge left the bench before Ewing was finished speaking with Lopes-Benitez, such that there was no opportunity to again address the court. Lopes-Benitez gave Ewing some written statements in Spanish, which he forwarded for translation at the time of his memo to Grauman.
On Wednesday, September 19, 2001, Lopes-Benitez' written statements were translated into English. The statements were addressed to the judge and the as-yet-not-picked jury. In the statements, Lopes-Benitez, inter alia, referred to an alleged conversation with Grauman on September 13, 2001, which was the Thursday before the then-setting of the trial on Monday, September 17, 2001, and the day on which Lopes-Benitez rejected the State's plea offer. He maintained that he had given counsel names of witnesses on his behalf. However, from the remainder of the statements and petitioner's trial testimony, it appears that Lopes-Benitez wanted counsel to call his employer and acquaintances to testify that he was a hard worker and that he respected women. Lopes-Benitez further maintained that he had asked counsel for the discovery but counsel had not given it to him. Lopes-Benitez asserted that Grauman spoke harshly to him when he did not accept the State's plea offer and that he then told Grauman that he wanted another attorney. According to Lopes-Benitez, Grauman responded that there was not enough time before trial to change attorneys and that he was going to represent petitioner at trial even if he did not want him to.
The record presented to the state court does not appear to reflect when Grauman recovered and returned to work during or after the two business days left in the week after he had to miss the scheduled Tuesday, September 18, 2001, trial date. The record does reflect that, after the trial had commenced, the scheduled third day of trial on September 26, 2011, during voir dire, had to be carried over due to Grauman being ill.
The trial commenced on the reset Monday, September 24, 2001, trial date.
Petitioner attached with a counseled supplemental state post-conviction petition — filed in 2005 — a document purporting to be handwritten proper person motion to dismiss counsel and appoint alternate counsel. The document is not file stamped. It is dated September 24, 2001, above the signature line. No claim has been made that the document was filed during the time of the trial on or after September 24, 2001.
Lopes-Benitez did not seek to address the court in proper person concerning the representation of his counsel at any point during six full or partial days of court proceedings from Monday, September 24, 2001, through Monday, October 1, 2001. The record does not reflect any attempt by Lopes-Benitez to request to stop the proceedings to present a purported written motion to dismiss counsel to the court.
On the seventh day of proceedings, October 2, 2011, the State rested. The court then engaged in the standard colloquy with Lopes-Benitez regarding the decision as to whether to testify, outside the presence of the jury. After the colloquy and during a lunch break, petitioner indicated his intention to testify, against his attorney's advice. During the ensuing on-record discussion after the break, Lopes-Benitez stated, in connection with his anticipated trial testimony, that he wanted to "explain by myself about the facts," that he had "some papers here," and that he wanted "to read these three papers." The State immediately interjected that he would have to testify and would not be able to read anything. The court echoed: "Testify, sir. I don't know what those papers are." The court asked defense counsel whether he knew what the papers were, and he responded: "No, I do not, Your Honor."
The prosecutor then stepped out so that the court could continue the discussion with only the defense. Thereafter, Lopes-Benitez expressed dissatisfaction — on the seventh day of trial, after the State had rested — with the extent to which his attorney had helped him. The court turned the discussion back to the election to testify, asking Lopes-Benitez whether he was going to take the stand and testify as he had indicated. Lopes-Benitez responded: "I want to read the papers and to say everything about what happened." The court asked him whether "those papers in front of you, is that your description of what happened?" He responded: "Yes. Yeah, about the attorney and the events." The court then stated, in the readily apparent context of petitioner's testimony before the jury, that it was not going to let him read papers in his testimony but that he would be allowed to refer to his notes if he forgot anything in his testimony.
After the prosecutor returned, Lopes-Benitez interjected: "This is a motion that I read to, Your Honor." The court inquired as to what kind of motion it was, to which Lopes-Benitez responded: "Concerning the attorney." The court told him that the motion was not relevant at that time but that it might be relevant at a later time.
Later, at the November 15, 2001, sentencing, Lopes-Benitez expressed his dissatisfaction with his counsel and stated: "I don't want this attorney anymore." This statement of course did not constitute a pretrial request to change counsel. Lopes-Benitez received the mandatory sentence of life with the possibility of parole after a minimum twenty years was served. The state district court stated that it was not the time to address the matter of whether counsel would continue to represent Lopes-Benitez on appeal.
The state supreme court rejected the claim presented to that court on the following grounds:
#24, Ex. 55, at 12.
The state supreme court's rejection of this claim of ineffective assistance of trial counsel was neither contrary to nor an unreasonable application of Strickland.
Petitioner contends that the state high court's finding "that it was unclear whether counsel knew about Lopes' attempts to dismiss counsel" was unreasonable.
More to the point, the state supreme court did not base its rejection of the claim upon a factual finding that counsel was unaware of either efforts to change counsel or of the purported motion itself. The state high court rejected the claim even after making arguendo assumptions that "counsel was aware of the motion and was deficient in not advising the district court of it." The court rejected the claim because, even with these arguendo assumptions, petitioner could not demonstrate prejudice.
A determination that there was not a reasonable probability of success on a request for change of counsel was not an objectively unreasonable application of Strickland. Counsel would have been presenting — at the last minute up against a hard trial date — a motion to change counsel based upon the defendant's lack of confidence in counsel. It is established law that a criminal defendant does not have a constitutional right to a meaningful relationship with counsel or to representation only by counsel in whom he subjectively has confidence. See, e.g., Plumlee v. Masto, 512 F.3d 1204, 1210-11 (9th Cir. 2008). A mere "conflict" with counsel based upon the defendant's loss of faith in counsel thus does not automatically entitle the defendant to a change of counsel, particularly up against a trial date. Id.
A determination that there was not a reasonable probability of a different outcome at trial also was not an objectively unreasonable application of Strickland. Petitioner once again argues that he "suffered prejudice as he was denied his right to have competent counsel represent his interests during this vital stage of the proceedings."
Ground 3(F) does not provide a basis for federal habeas relief.
In the remaining claims in Ground 4(B), petitioner alleges that he was denied effective assistance of counsel when appellate counsel failed to raise or adequately brief the prosecutorial misconduct claim referenced in Grounds 2 and 3(D). In the remaining claims in Ground 4(C), he alleges that appellate counsel failed to "federalize" the claim that was raised in this regard on direct appeal.
After stating the relevant legal standard, the state supreme court rejected the claims presented to that court on the following grounds:
#24, Ex. 55, at 13-14.
The state supreme court's rejection of these claims was neither contrary to nor an unreasonable application of Strickland.
When evaluating claims of ineffective assistance of appellate counsel, the performance and prejudice prongs of the Strickland standard partially overlap. E.g., Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Effective appellate advocacy requires weeding out weaker issues with less likelihood of success. The failure to present a weak issue on appeal neither falls below an objective standard of competence nor causes prejudice to the client for the same reason — because the omitted issue has little or no likelihood of success on appeal. Id.
Following upon the Court's discussion of Grounds 2 and 3(D), supra, the state supreme court's determination that there was not a reasonable probability of a different outcome on appeal had appellate counsel argued the substantive claim further or further "federalized" the claim was not an unreasonable application of Strickland. With regard to the claim of inadequate "federalization," lack of such federalization, in the main, has not precluded federal habeas review of the substantive claim. This Court assessed the claim with regard to the relevant federal standard of constitutional due process, even though petitioner's argument herein in the main was directed to the inapposite broad standard of supervisory power applied in federal criminal appeals. With regard to the unexhausted confrontation claim,
Grounds 4(B) and 4(C) do not provide a basis for federal habeas relief.
Petitioner's request for an evidentiary hearing is denied, as review under AEDPA is restricted to the record presented to the state court that adjudicated the merits of the claims. See Pinolster, 131 S.Ct. at 1398-1401.
Under Rule 11 of the Rules Governing Section 2254 Cases, the district court must issue or deny a certificate of appealability (COA) when it enters a final order adverse to the applicant.
As to the claims rejected by the district court on the merits, under 28 U.S.C. § 2253(c), a petitioner must make a "substantial showing of the denial of a constitutional right" in order to obtain a certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999). To satisfy this standard, the petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong." Slack, 529 U.S. at 484, 120 S.Ct. at 1604.
As to claims rejected on procedural grounds, the petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. at 1604. While both showings must be made to obtain a COA, "a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." 529 U.S. at 485, 120 S.Ct. at 1604. Where a plain procedural bar is properly invoked, an appeal is not warranted. 529 U.S. at 484, 120 S.Ct. at 1604.
The Court will grant a certificate of appealability as to its decision: (a) that no basis for tolling or delayed accrual exists in this case after the constructive filing of the federal petition on October 1, 2008; and (b) that Grounds 1, 3(B), 3(C)(2), and 3(E) and parts of Grounds 4(B) and 4(C) do not relate back to the filing of the federal petition. The Court remains of the view that its ruling on these points — in #63, at 13-22 — was correctly decided. However, the points are sufficiently debatable by jurists of reason.
The Court will deny a COA as to its holding — in #63, at 21-23 — that Grounds 4(A), 5 and 6 do not relate back. See Schneider v. McDaniel, 674 F.3d 1144, 1150-52 (9th Cir. 2012).
The Court will deny a COA as its decision that the Confrontation Clause claim in Ground 2 was not exhausted. See #66.
And the Court will deny a COA as to the rejection of the claims on the merits by this order, as jurists of reason would not find the rejection of the claims to be incorrect or debatable, for the reasons and on the record canvassed herein.
IT THEREFORE IS ORDERED that petitioner's motion (#67) for partial dismissal is GRANTED and that the confrontation claim within Ground 2 is DISMISSED.
IT FURTHER IS ORDERED that all remaining claims in the petition are DENIED on the merits and that this action shall be DISMISSED with prejudice.
IT FURTHER IS ORDERED that a certificate of appealability is GRANTED IN PART as to the Court's decision (in #63, at 13-22): (a) that no basis for tolling or delayed accrual exists in this case after the constructive filing of the federal petition on October 1, 2008; and (b) that Grounds 1, 3(B), 3(C)(2), and 3(E) and parts of Grounds 4(B) and 4(C) do not relate back to the filing of the federal petition.
IT FURTHER IS ORDERED that a certificate of appealability otherwise is DENIED as to the rejection of all other claims, as applicable, for failure to relate back, lack of exhaustion, or on the merits. See text, supra, at 45-46.
The Clerk of Court shall enter final judgment accordingly in favor of respondents and against petitioner, dismissing this action with prejudice.
In the federal reply, petitioner collapses all of the foregoing into the following:
#65, at 24.
Any implied suggestion that Lopes-Benitez attempted to present a written motion to dismiss counsel to the state court on September 24, 2001, is belied by the record. Lopes-Benitez did not address the court in regard to any concerns about counsel until October 2, 2001, on the seventh day of trial and after the State had rested. Even then, it is not a foregone conclusion that the motion to which Lopes-Benitez referred at the end of the discussion was a motion to dismiss counsel. Lopes-Benitez stated only that the motion was "[c]oncerning the attorney." The state district judge apparently assumed that he was seeking to present a claim of ineffective assistance of trial counsel, which of course would have been premature. The seventh day of trial would have been an unusual time to file a motion to change counsel, even for a lay defendant. The document dated September 24, 2001, was not in fact presented for filing until it was presented as an exhibit in 2005. It hardly is established that the document was the motion to which Lopes-Benitez referred to in 2001. As the state court record stood on October 2, 2001, during trial, petitioner in fact articulated no request to the state district court to change counsel. He stated only that he had a motion "concerning counsel." In all events, nothing occurred in this regard in court on September 24, 2001, at the start of the trial, or over the five court days that followed.
