ROBERT C. JONES, District Judge.
This habeas corpus action is brought by Ramiro Galicia, a Nevada prisoner serving a sentence of life in prison without the possibility of parole, for the murder of Jazmin Gonzalez,
As Galicia's conviction was upon his guilty plea before trial, the facts regarding the murder have not been fully developed. However, the record reflects that the State alleged — and introduced evidence at Galicia's sentencing to show — that on November 19, 2006, Galicia, with the help of a co-conspirator, rented a room at the Horizon Hotel and Casino, in Stateline, Nevada, where Gonzalez was employed, and hid and waited overnight in the room, which he knew Gonzalez would eventually be cleaning, and then killed her with a ball-peen hammer and a knife after she entered to clean the room. See Exhibit 12, pp. 19-23 (ECF No. 13-12, pp. 20-24) (statement of prosecutor at March 26, 2007, arraignment and plea); Exhibit 13, pp. 18-32 (ECF No. 13-13, pp. 19-33) (testimony of lead investigator at June 4, 2007, sentencing).
On November 20, 2006, Galicia was charged with first-degree murder with use of a deadly weapon and in violation of an extended order for protection against domestic violence, first-degree kidnapping, and conspiracy to violate the protective order. Exhibit 2.
Pursuant to plea negotiations, the State dropped the kidnapping and conspiracy charges, and filed an information charging Galicia with a single count of first-degree murder in violation of the protective order. Exhibit 9. The State also agreed not to seek the death penalty, and not to seek a deadly-weapon enhancement. See Exhibit 10 (plea agreement); Exhibit 12, p. 6 (ECF No. 13-12, p. 7). Galicia pled guilty to first-degree murder in violation of the protective order, and was sentenced to life in prison without the possibility of parole for the murder, and a consecutive prison sentence of two to five years for the violation of the protective order. See Exhibits 10 and 15 (judgment of conviction). The judgment of conviction was entered on June 7, 2007. See Exhibit 15. Galicia did not appeal from the judgment of conviction.
On June 5, 2008, Galicia filed, in the state district court, a post-conviction petition for a writ of habeas corpus, and on September 15, 2008, he filed a supplement to that petition. Exhibits 23, 30. On June 29, 2009, following an evidentiary hearing, the state district court denied the petition. Exhibit 35; see also Exhibit 33 (transcript of evidentiary hearing). Galicia appealed. See Exhibit 34. The Nevada Supreme Court affirmed on November 8, 2010. Exhibit 44.
Galicia initiated this federal habeas action on January 11, 2011. The court appointed counsel to represent him. See Order entered April 1, 2011 (ECF No. 6). With counsel, Galicia filed an amended petition for writ of habeas corpus on October 27, 2011 (ECF No. 12).
Respondents then filed a motion to dismiss (ECF No. 21). On September 12, 2012, the court granted that motion in part and denied it in part; the court dismissed one of Galicia's four grounds for relief (Ground 3) for failure to state a claim upon which relief could be granted. Order entered September 12, 2012 (ECF No. 26). Respondents then filed an answer (ECF No. 27), responding to the three remaining claims in Galicia's first amended petition (Grounds 1, 2, and 4), and Galicia filed a reply (ECF No. 29).
Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
The analysis under 28 U.S.C. § 2254(d) looks to the law that was clearly established by United States Supreme Court precedents at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
With respect to questions of fact, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In Ground 1, Galicia claims that his federal constitutional right to due process of law was violated because his "guilty pleas were not entered knowingly, intelligently, and voluntarily...." First Amended Petition (ECF No. 12), p. 7.
Galicia raised this claim in state court in his post-conviction petition for writ of habeas corpus (see Exhibits 23, 30), and it was the primary subject of the evidentiary hearing held in the state district court on February 5, 2009, at which Galicia, his trial counsel, and an interpreter who worked extensively on Galicia's case, testified. See Exhibit 33. Following the evidentiary hearing, the state district court ruled as follows:
Findings of Fact, Conclusions of Law and Order, Exhibit 35, pp. 8-9 (ECF No. 14-4, pp. 9-10). The state district court also made the following findings:
Id. at 6-8 (ECF No. 14-4, pp. 7-9). The state district court also found the following:
Id. at 9 (ECF No. 14-4, p. 10).
On appeal, the Nevada Supreme Court affirmed the denial of this claim, ruling as follows:
Order of Affirmance, Exhibit 44, pp. 1-2 (ECF No. 14-13, pp. 2-3).
It is clearly established federal law that a guilty plea must be knowing, intelligent and voluntary. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969). The record must reflect that a criminal defendant pleading guilty understands, and voluntarily waives, his rights to the privilege against compulsory self-incrimination, to trial by jury, and to confront his accusers. Boykin, 395 U.S. at 243. The long-standing test is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Parke v. Raley, 506 U.S. 20, 29 (1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). "The voluntariness of [a petitioner's] guilty plea can be determined only by considering all of the relevant circumstances surrounding it." Brady, 397 F.2d at 749. The Supreme Court, while noting that a defendant's representations at the time of his guilty plea are not "invariably insurmountable" when challenging the voluntariness of his plea, has stated that, nonetheless, the defendant's representations, as well as any findings made by the judge accepting the plea, "constitute a formidable barrier in any subsequent collateral proceedings" and that "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Doe v. Woodford, 508 F.3d 563, 571 (9th Cir.2007).
Galicia argues in support of Ground 1 that he did not understand the elements of the offense to which he pled guilty. See First Amended Petition, p. 7. Galicia picks out select excerpts from the plea colloquy, and from the transcript of the evidentiary hearing, in an attempt to support this claim. See id. at 7-9; see also Reply (ECF No. 29), pp. 2-5. The court finds Galicia's argument in this regard to be unpersuasive, and to fall well short of the AEDPA standard for federal habeas relief. The state courts' ruling on this claim was well supported by the evidence presented at the evidentiary hearing, and it was consistent with well-settled federal law governing pleas.
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; nor was the state courts' disposition of this claim based on an unreasonable determination of the facts in light of the evidence presented in the state-court post-conviction proceeding. The court will deny habeas corpus relief with respect to Ground 1.
In Ground 2, Galicia claims that his trial counsel rendered ineffective assistance, in violation of his rights under the Fifth, Sixth and Fourteenth Amendments, because trial counsel "failed to advise Mr. Galicia of his right to file a direct appeal from his conviction." First Amended Petition, p. 10.
Galicia raised this claim in state court in his post-conviction petition for writ of habeas corpus (see Exhibits 23, 30), but did little to develop it at the evidentiary hearing. See Exhibit 33. The Nevada Supreme Court ruled as follows on the merits of this claim:
Order of Affirmance, Exhibit 44, p. 2 n.1 (ECF No. 14-13, p. 2).
This claim is without merit. There was substantial evidence presented, at the evidentiary hearing in the state district court, showing that Galicia's trial counsel did in fact advise him about his right to appeal. See Exhibit 33, pp. 98-100, 103 (ECF No. 14-2, pp. 99-101, 104). Moreover, Galicia has never articulated any claim that he would have raised on a direct appeal, much less any claim that would have had any chance of success.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of unconstitutional ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. Galicia's claim of ineffective assistance of counsel, in Ground 2, fails on both Strickland prongs.
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. The court will deny habeas corpus relief with respect to Ground 2.
In Ground 4, Galicia claims that he was denied his federal constitutional right to effective assistance of counsel because his trial counsel "failed to adequately investigate and prepare to present a defense on Mr. Galicia's behalf." First Amended Petition, p. 13.
Galicia raised this claim in state court in his post-conviction petition for writ of habeas corpus (see Exhibits 23, 30), but, here again, he did little to develop this claim at the evidentiary hearing. See Exhibit 33. The Nevada Supreme Court ruled as follows on the merits of the claim:
Order of Affirmance, Exhibit 44, p. 2 n.1 (ECF No. 14-13, p. 2).
At the evidentiary hearing in state court, Galicia's trial counsel testified that he did consider whether there was any viable defense to be asserted on Galicia's behalf, and that he discussed that question extensively with Galicia, but that, given the evidence against Galicia, there simply was no viable defense. See, e.g., Exhibit 33, pp. 83-88, 105-07 (ECF No. 14-2, pp.). Galicia did not make any showing at all in state court regarding what sort of investigation his counsel should have done, what any investigation would have uncovered, or how any investigation would have prevented Galicia from entering the plea agreement — a plea agreement that allowed Galicia to avoid the possibility of a death penalty, and that eliminated the possibility of a deadly-weapon enhancement, which might have increased his prison sentence considerably.
In this federal habeas action, Galicia argues that "[t]rial counsel was ineffective for failing to investigate a possible defense of mental illness." First Amended Petition, p. 13. Specifically, Galicia claims, his attorney "was ineffective for failing to investigate and discover records from Barton Memorial Hospital reflecting that on September 23, 2006 — less than two months prior to the offense — Galicia was admitted to the emergency room due to an anxiety attack." Id. Galicia submits, as exhibits, records of that medical event. See Exhibits 46, 47, 48, 49, 50. Leaving aside the obvious question whether that event, an anxiety attack several weeks before the murder, could somehow have formed a basis for a defense to first degree murder, this evidence was not presented in state court. See Exhibit 33. Galicia asks to develop this new evidence in an evidentiary hearing in this action to support Ground 4. See Reply, pp. 8-10. Galicia is not entitled to such a hearing. "Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). "[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Id. at 1400. Galicia does not do so here: the state courts' denial of relief on this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. For these reasons, Galicia's request for an evidentiary hearing is denied, and the court will not consider the evidence proffered by Galicia in Exhibits 46, 47, 48, 49, 50.
The Nevada Supreme Court reasonably ruled that Galicia did not show prejudice from the alleged inadequate investigation and preparation on the part of his counsel, in that there was no showing of a reasonable probability that, but for the alleged errors, Galicia would not have pled guilty and would have insisted on going to trial. The court will deny habeas corpus relief with respect to Ground 4.
The standard for issuance of a certificate of appealability calls for a "substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c). The Supreme Court interpreted 28 U.S.C. §2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). The Supreme Court further illuminated the standard in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:
Miller-El, 123 S.Ct. at 1040 (quoting Slack, 529 U.S. at 484).
The court has considered the issues raised by Galicia, with respect to whether they satisfy the standard for issuance of a certificate of appeal, and the court determines that none of his claims satisfy that standard. The court will deny Galicia a certificate of appealability.
