Rodriguez v. Filson et al, No. 3:2015cv00339 - Document 49 (D. Nev. 2020)
Court Description: ORDER denying ECF No. 23 First Amended Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254; denying Petitioner a certificate of appealability; directing Clerk to enter judgment accordingly and close case. Signed by Chief Judge Miranda M. Du on 5/6/2020. (Copies have been distributed pursuant to the NEF - KR)
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Rodriguez v. Filson et al Doc. 49 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 1 of 13 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 EDWARD G. RODRIGUEZ, 7 Petitioner, ORDER v. 8 9 Case No. 3:15-cv-00339-MMD-WGC TIMOTHY FILSON, et al., 10 Respondents. 11 12 I. SUMMARY 13 Petitioner Edward G. Rodriguez filed a petition for writ of habeas corpus under 28 14 U.S.C. § 2254. This matter is before the Court for adjudication of the merits of the 15 remaining grounds in the counseled amended petition (“Amended Petition”). For the 16 reasons discussed below, the Court denies the Amended Petition, denies a certificate of 17 appealability, and directs the Clerk of the Court to enter judgment accordingly. 18 II. BACKGROUND 19 Rodriguez’s conviction is the result of events that occurred in Washoe County, 20 Nevada on or about December 10, 2006. (ECF No. 24-9.) Rodriguez was charged with 21 the murder of Pamela Sue Carter by means of strangulation and/or suffocation. (Id.) 22 Rodriguez pleaded not guilty to the charge. (ECF No. 24-10 at 4-5.) During the third day 23 of trial, Rodriguez indicated that it was “in his best interest to enter some type of plea.” 24 (ECF No. 25-2 at 67.) Rodriguez pleaded guilty to first-degree murder in return for the 25 State dropping the weapon enhancement. (Id. at 67, 75.) During the state district court’s 26 plea canvass, Rodriguez explained that Carter owed him money and that he bound and 27 gagged her as a threat to get her to repay him. (Id. at 74-75.) Carter was still alive when 28 Rodriguez left her residence, and Rodriguez believed that Carter’s husband would Dockets.Justia.com Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 2 of 13 1 simply find her and remove her gag in the morning. (Id. at 75.) Rodriguez was sentenced 2 to life without the possibility of parole. (ECF No. 25-3 at 2.) Rodriguez did not appeal his 3 judgment of conviction. 4 Rodriguez filed a state habeas petition on April 28, 2008. (ECF No. 25-7.) The 5 state district court held an evidentiary hearing on January 21, 2014. (ECF No. 25-17.) 6 Thereafter, on January 30, 2014, the state district court entered an order denying 7 Rodriguez’s petition. (ECF No. 25-18.) The Nevada Court of Appeals affirmed on April 8 14, 2015. (ECF No. 26-5.) Remittitur issued on May 11, 2015. (ECF No. 26-6.) 9 Rodriguez filed a pro se federal habeas petition and a counseled first amended 10 petition on June 26, 2015 and February 6, 2017, respectively. (ECF Nos. 1-1, 23.) 11 Respondents moved to dismiss the Amended Petition. (ECF No. 27.) This Court granted 12 the motion is part. (ECF No. 33.) Specifically, this Court concluded that Grounds 1(a) 13 and 3 were unexhausted. (Id. at 11.) Thereafter, Rodriguez moved to dismiss Grounds 14 1(a) and 3. (ECF No. 37.) This Court granted the motion. (ECF No. 38.) Respondents 15 answered the remaining grounds in Rodriguez’s Amended Petition on August 27, 2018. 16 (ECF No. 43.) Rodriguez replied on November 27, 2018. (ECF No. 46.) 17 In his remaining grounds for relief, Rodriguez asserts the following violations of his 18 federal constitutional rights: (Ground 1(b)) his trial counsel failed to inform him that he 19 had the right to a direct appeal; and (Ground 2) his trial counsel failed to investigate and 20 present mitigating evidence on his behalf at sentencing. (ECF No. 23 at 10-13.) 21 III. LEGAL STANDARD 22 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 23 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 24 (“AEDPA”): 25 26 27 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- 28 2 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 3 of 13 1 2 3 4 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 5 6 A state court decision violates clearly established Supreme Court precedent “if 7 the state court applies a rule that contradicts the governing law set forth in [the Supreme 8 Court’s] cases” or “if the state court confronts a set of facts that are materially 9 indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 10 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell 11 v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable 12 application of clearly established Supreme Court precedent “if the state court identifies 13 the correct governing legal principle from [the Supreme] Court’s decisions but 14 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting 15 Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires the state 16 court decision to be more than incorrect or erroneous. The state court’s application of 17 clearly established law must be objectively unreasonable.” Id. (quoting Williams, 529 18 U.S. at 409-10) (internal citation omitted). 19 The Supreme Court has instructed that “[a] state court’s determination that a 20 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 21 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 22 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 23 Supreme Court has stated “that even a strong case for relief does not mean the state 24 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 25 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as 26 a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, 27 which demands that state-court decisions be given the benefit of the doubt” (internal 28 quotation marks and citations omitted)). 3 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 4 of 13 1 IV. DISCUSSION 2 Rodriguez’s remaining grounds for relief involve claims that his trial counsel was 3 ineffective. In Strickland, the Supreme Court propounded a two-prong test for analysis 4 of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) 5 that the attorney’s “representation fell below an objective standard of reasonableness,” 6 and (2) that the attorney’s deficient performance prejudiced the defendant such that 7 “there is a reasonable probability that, but for counsel’s unprofessional errors, the result 8 of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 9 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must 10 apply a “strong presumption that counsel’s conduct falls within the wide range of 11 reasonable professional assistance.” Id. at 689. The petitioner’s burden is to show “that 12 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 13 guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to establish 14 prejudice under Strickland, it is not enough for the habeas petitioner “to show that the 15 errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. 16 Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial 17 whose result is reliable.” Id. at 687. 18 Where a state district court previously adjudicated the claim of ineffective 19 assistance of counsel under Strickland, establishing that the decision was unreasonable 20 is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United 21 States Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, 22 and when the two apply in tandem, review is doubly so. Id. at 105; see also Cheney v. 23 Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) 24 (“When a federal court reviews a state court’s Strickland determination under AEDPA, 25 both AEDPA and Strickland’s deferential standards apply; hence, the Supreme Court’s 26 description of the standard as doubly deferential.”) The Supreme Court further clarified 27 that, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were 28 /// 4 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 5 of 13 1 reasonable. The question is whether there is any reasonable argument that counsel 2 satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. 3 4 5 6 7 8 9 In Rodriguez’s appeal of the denial of his state habeas petition, the Nevada Court of Appeals noted that: The district court conducted an evidentiary hearing and received testimony from Rodriguez, his trial counsel, and his sister. The district court found that Rodriguez failed to demonstrate that trial counsel had a legal duty to inform him of the right to a direct appeal, that further trial preparation would have produced helpful information, or that further sentencing preparation would have produced mitigation witnesses whose testimony would have led to a lesser sentence. And the district court concluded that Rodriguez failed to meet his burden to prove ineffective assistance of counsel. 10 11 (ECF No. 11-4 at 2-3.) The Nevada Court of Appeals then held that because the district 12 court’s factual findings were supported by substantial evidence, Rodriguez failed to 13 show that he was deprived of effective assistance of counsel. (Id.) 14 The Nevada Court of Appeal’s rejection of Rodriguez’s Strickland claims was 15 neither contrary to nor an unreasonable application of clearly established law as 16 determined by the United States Supreme Court. The Court will address the two 17 remaining ineffective assistance of counsel grounds in turn below. 18 A. Ground 1(b) 19 In Ground 1(b), Rodriguez alleges that his federal constitutional rights were 20 violated when his trial counsel failed to inform him that he had the right to a direct appeal. 21 (ECF No. 23 at 10.) Rodriguez explains that a rational defendant would have wanted to 22 appeal the maximum sentence he received, so his trial counsel’s duty to discuss an 23 appeal with him was triggered. (ECF No. 46 at 9.) 24 25 During Rodriguez’s change of plea canvass, the following colloquy took place between Rodriguez and the state district court: 26 THE COURT: 27 [Rodriguez]: 28 If the jury were to find you guilty, you could appeal. Do you understand that? Yes, I do. Can I appeal now that - - because of - - if my pleading guilty, is that still appealable? 5 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 6 of 13 1 THE COURT: No. The jury will not hear and decide the remainderer [sic] of your trial if the Court accepts your guilty plea. Do you understand that? [Rodriguez]: Yes, I do, Your Honor. 2 3 4 (ECF No. 25-2 at 71.) Rodriguez did not appeal his judgment of conviction. 5 Over six years later, during Rodriguez’s post-conviction evidentiary hearing, 6 Rodriguez testified that his trial counsel “never brought any appeal issues up, or 7 [Rodriguez] would have [taken] back [his] sentence in a heartbeat.” (ECF No. 25-17 at 8 5, 33.) Rodriguez did not ask his trial counsel to file an appeal because he “didn’t know 9 about an appeal” until he was informed of such by other inmates. (Id. at 33.) Rodriguez 10 would have “appeal[ed] the Motions to Suppress” because he “knew [his] Miranda rights 11 weren’t read.” (Id.) 12 Rodriguez’s trial counsel testified at the evidentiary hearing that he did not 13 “remember [Rodriguez] asking [him] to file an appeal.” (ECF No. 25-17 at 45, 53.) 14 Rodriguez’s trial counsel “was a little surprised based on [his] experience that 15 [Rodriguez] got the max[imum]” sentence, but he explained that “[j]ust because you 16 don’t like the sentence, that is not really the basis for appeal.” (Id. at 53.) Although he 17 acknowledged that Rodriguez was unhappy with the sentence he received, there were 18 no appealable issues that stood out to Rodriguez’s trial counsel because the state 19 district court thoroughly canvassed Rodriguez before accepting his plea. (Id. at 54, 58.) 20 The state district court, finding that Rodriguez was not credible (ECF No. 25-18 21 at 3), held that “there is no evidence or reasonable inference from evidence or legal 22 argument that there would be any ground for appeal in this case” and that Rodriguez 23 “entered his guilty plea freely and voluntarily without threats or promises or any kind and 24 with an understanding of the nature of the offense and the consequences of his guilty 25 plea.” (ECF No. 25-17 at 68.) 26 The Strickland “test applies to claims . . . that counsel was constitutionally 27 ineffective for failing to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 477 28 (2000). When counsel “disregards specific instructions from the defendant to file a notice 6 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 7 of 13 1 of appeal,” counsel has acted unreasonably. Id. However, “where the defendant neither 2 instructs counsel to file an appeal nor asks that an appeal not be taken” the question is 3 “whether counsel in fact consulted with the defendant about the appeal.” Id. at 478. 4 Consulting means “advising the defendant about the advantages and disadvantages of 5 taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” 6 Id. However, “[i]f counsel has not consulted with the defendant, the court must in turn 7 ask . . . whether counsel’s failure to consult with the defendant itself constitutes deficient 8 performance.” Id. Following the rejection of a bright-line rule, the Supreme Court 9 concluded that “counsel has a constitutionally imposed duty to consult with the 10 defendant about an appeal when there is reason to think either (1) that a rational 11 defendant would want to appeal . . . , or (2) that this particular defendant reasonably 12 demonstrated to counsel that he was interested in appealing.” Id. at 480. An example of 13 the first instance imposing a duty to consult is where “there are nonfrivolous grounds for 14 appeal.” Id. Where the defendant pleaded guilty, “the court must consider such factors 15 as whether the defendant received the sentence bargained for as part of the plea and 16 whether the plea expressly reserved or waived some or all appeal rights.” Id. And in 17 order “to show prejudice in these circumstances, a defendant must demonstrate that 18 there is a reasonable probability that, but for counsel’s deficient failure to consult with 19 him about an appeal, he would have timely appealed.” Id. at 484. 20 Rodriguez never gave his trial counsel specific instructions to file a notice of 21 appeal, and it is not clear from the record that Rodriguez’s trial counsel consulted him 22 about appealing. Thus, the question here is whether Rodriguez’s trial counsel’s duty to 23 consult Rodriguez about an appeal was triggered. Flores-Ortega, 528 U.S. at 480. The 24 Nevada Court of Appeals reasonably determined that the state district court’s finding 25 that Rodriguez failed to demonstrate that his trial counsel’s duty to inform him of the 26 right to a direct appeal was triggered was supported by substantial evidence. 27 First, there was no reason for Rodriguez’s trial counsel to think that “a rational 28 defendant would want to appeal.” Id. at 480. As Rodriguez’s trial counsel testified at the 7 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 8 of 13 1 post-conviction evidentiary hearing, there were no appealable issues that stood out to 2 him and “[j]ust because you don’t like the sentence, that is not really the basis for 3 appeal.” (ECF No. 25-17 at 53-54.) Indeed, Rodriguez was sentenced to life without the 4 possibility of parole (ECF No. 25-3 at 2), which Rodriguez acknowledged was a possible 5 sentence he faced as a result of his plea. (See ECF No. 25-1 at 4-5.) Further, 6 Rodriguez’s guilty plea agreement provided that he understood that he had “the right to 7 appeal from adverse rulings on pretrial motions only if the State and the Court 8 consent[ed] to [his] right to appeal,” and that, “[i]n the absence of such an agreement, 9 [he] underst[oo]d that any substantive or procedural pretrial issue or issues which could 10 have been raised at trial [were] waived by [his] plea.” (ECF No. 25-1 at 4.) Similarly, 11 during Rodriguez’s guilty plea canvass, the state district court asked if Rodriguez 12 understood that “if the Court accepts [his] plea of guilty, there will be no issues for the 13 appellate court to consider.” (ECF No. 25-2 at 71.) Rodriguez answered in the 14 affirmative. (Id.) These facts weigh against a finding that Rodriguez’s trial counsel had 15 a reason to think that Rodriguez would have wanted to appeal his judgment of 16 conviction. 17 Second, there was no reason for Rodriguez’s trial counsel to think that Rodriguez 18 “was interested in appealing.” Flores-Ortega, 528 U.S. at 480. Rodriguez asserts that 19 his statements during the plea canvass wherein he asked whether he could appeal his 20 guilty plea triggered his trial counsel’s duty to talk to him about appealing. (ECF No. 46 21 at 10.) It cannot be concluded that this question made to the state district court two 22 months prior to his sentencing hearing demonstrated Rodriguez’s interest in appealing 23 his judgment of conviction. It was merely a question about his right to appeal his plea in 24 response to a statement by the state district court that Rodriguez could appeal a guilty 25 verdict. (See ECF No. 25-2 at 71). This clarification of his rights was not an indication to 26 this trial counsel that he wanted to appeal, especially since Rodriguez had yet to be 27 sentenced. 28 /// 8 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 9 of 13 1 Accordingly, because the Nevada Court of Appeals reasonably determined that 2 Rodriguez failed to demonstrate deficiency on the part of his trial counsel for not advising 3 him of his right to appeal, Strickland, 466 U.S. at 688, Rodriguez is denied federal 4 habeas relief for Ground 1(b). 5 B. Ground 2 6 In Ground 2, Rodriguez alleges that his federal constitutional rights were violated 7 when his trial counsel failed to investigate and present mitigating evidence on his behalf 8 at sentencing. (ECF No. 23 at 12.) Specifically, Rodriguez asserts that his trial counsel 9 should have presented his sister, Sandra Florez, as a mitigating witness to testify about 10 his nonviolent character. (Id.) Rodriguez contends that he received a harsher sentence 11 than he otherwise would have if his trial counsel had properly prepared for the 12 sentencing hearing and presented mitigating evidence. (ECF No. 46 at 13.) 13 During Rodriguez’s sentencing hearing, Rodriguez’s trial counsel explained that 14 “there were four letters that were faxed to [his] office [the day before]. . . and some [other 15 letters that were sent later that evening] that [he] presented to the Court.” (ECF No. 25- 16 4 at 3.) Rodriguez’s trial counsel “ask[ed] the Court to consider [those letters] in 17 mitigation of sentence.” (Id. at 4.) The State summarized those letters: “you have letters 18 from his ex-wife and other relatives asking for leniency, your honor, indicating that he’s 19 a caring and loving husband, that they’re basically shocked by this, didn’t think he was 20 capable of it.” (Id. at 13.) Rodriguez’s trial counsel argued that “Rodriguez did ultimately 21 take responsibility for his actions,” that Rodriguez’s “intention was never that someone 22 was going to die,” and that an appropriate sentence would be “the life term with parole 23 beginning after 20 years.” (Id. at 4.) 24 At his post-conviction evidentiary hearing, Rodriguez testified that he did not meet 25 or talk to his trial counsel between his change of plea hearing and his sentencing 26 hearing, so he never had the chance to discuss any type of mitigation with him. (ECF 27 No. 25-17 at 5, 30.) Rodriguez did not know that he “was supposed to present witnesses” 28 or other evidence at his sentencing hearing, so “he never brought it up” with his trial 9 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 10 of 13 1 counsel. (Id. at 30-31.) Rodriguez did, however, request that his ex-wife “gather up some 2 letters” to be presented to the state district court. (Id. at 31.) 3 Rodriguez’s trial counsel testified at the post-conviction evidentiary hearing that 4 he did not remember what he did to prepare for Rodriguez’s sentencing. (ECF No. 25- 5 17 at 45, 51.) However, he explained that “if [he] had letters from somebody, [he] would 6 have probably been the one to ask somebody to write a letter on behalf of [the] client.” 7 (Id. at 55.) 8 Rodriguez called Sandra Florez, his sister, to testify at his post-conviction 9 evidentiary hearing that he was never violent and was, in fact, “a great older brother, 10 caring, loving, hard working.” (ECF No. 25-17 at 60-61, 65.) Florez was never contacted 11 by anyone to speak on Rodriguez’s behalf at his sentencing hearing, but she admitted 12 that she was not in attendance for that hearing and did not remember why she failed to 13 attend. (Id. at 61, 64.) 14 Following the presentation of witnesses and argument at the post-conviction 15 evidentiary hearing, the state district court found that Rodriguez’s trial counsel was not 16 deficient, explaining that Rodriguez’s trial counsel “made an argument in mitigation on 17 behalf of his client, . . . he opposed the State’s position at sentencing[, and h]e presented 18 letters to the Court in further mitigation.” (ECF No. 25-17 at 74.) The state district court 19 further reasoned that “[t]he only potential witness who has been identified during this 20 hearing is . . . Ms. Florez,” and “Ms. Florez testified she knows nothing about the 21 circumstances of the murder,” that Rodriguez “never advised her of his interest in having 22 her appear to testify at the sentencing,” and that she “did not appear [at Rodriguez’s 23 sentencing] and she has no reason for why she didn’t appear.” (Id.) 24 Counsel’s performance at the penalty phase is measured against “prevailing 25 professional norms.” Strickland, 466 U.S. at 688. And this Court “must avoid the 26 temptation to second-guess [counsel’s] performance or to indulge ‘the distorting effects 27 of hindsight.’” Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (citing Strickland, 28 466 U.S. at 689). But “judicial deference to counsel is predicated on counsel’s 10 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 11 of 13 1 performance of sufficient investigation and preparation to make reasonably informed, 2 reasonably sound judgments.” Id. When challenging a trial counsel’s actions in failing to 3 present mitigating evidence during a sentencing hearing, the “principal concern . . . is 4 not whether counsel should have presented a mitigation case[, but instead] . . . whether 5 the investigation supporting counsel’s decision not to introduce mitigating evidence . . . 6 was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 522-23 (2003) (emphasis in 7 original). 8 The Nevada Court of Appeals reasonably determined that the state district court’s 9 finding that Rodriguez failed to demonstrate that further sentencing preparation would 10 have produced mitigating witnesses whose testimony would have led to a lesser 11 sentence was supported by substantial evidence. Rodriguez’s trial counsel did not 12 remember what he did to prepare for Rodriguez’s sentencing, but he explained that he 13 probably asked individuals to write letters on Rodriguez’s behalf. (ECF No. 25-17 at 51, 14 55.) These letters from Rodriguez’s family asked for leniency for Rodriguez, indicating 15 that he was a caring person. (See ECF No. 25-4 at 13.) Although Rodriguez’s mitigating 16 evidence was not presented in the form that Rodriguez allegedly desired—live 17 testimony—Rodriguez’s trial counsel presented this mitigating evidence in a strategic, 18 reasonable manner. Harrington, 562 U.S. at 106 (“Rare are the situations in which the 19 wide latitude counsel must have in making tactical decisions will be limited to any one 20 technique or approach.”); see also Strickland, 466 U.S. at 688-89 (“No particular set of 21 detailed rules for counsel’s conduct can satisfactorily take account of the variety of 22 circumstances faced by defense counsel or the range of legitimate decisions regarding 23 how best to represent a criminal defendant.”). In addition to these letters, Rodriguez’s 24 trial counsel also made arguments in support of mitigation: Rodriguez’s trial counsel 25 argued that Rodriguez took responsibility for his actions and never intended for the 26 victim to die. (ECF No. 25-4 at 4.) Accordingly, the Nevada Court of Appeals reasonably 27 determined that Rodriguez’s trial counsel was not deficient. Strickland, 466 U.S. at 688. 28 /// 11 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 12 of 13 1 Further, regarding prejudice, Florez’s testimony at the post-conviction evidentiary 2 hearing about Rodriguez being a “caring, loving, hard working” individual appears to 3 mirror the mitigating letters presented to the state district court. (ECF No. 25-17 at 60- 4 61.) As such, Rodriguez fails to demonstrate that the addition of Florez’s opinion about 5 his character would have changed his sentence. Strickland, 466 U.S. at 694; see also 6 Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland prejudice is not established 7 by mere speculation.”); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) 8 (denying an ineffective-assistance-of-counsel claim based on counsel’s refusal to call 9 witnesses because the defendant “offers no indication of . . . how their testimony might 10 have changed the outcome of the hearing”). Therefore, the Nevada Court of Appeals 11 reasonably determined that Rodriguez failed to demonstrate prejudice. Strickland, 466 12 U.S. at 694. 13 Thus, because the Nevada Court of Appeals reasonably determined that 14 Rodriguez’s ineffective-assistance-of-counsel claim lacked merit, Rodriguez is denied 15 federal habeas relief for Ground 2. 1 16 V. CERTIFICATE OF APPEALABILITY 17 This is a final order adverse to Rodriguez. As such, Rule 11 of the Rules Governing 18 Section 2254 Cases requires this Court to issue or deny a certificate of appealability 19 (“COA”). Therefore, this Court has sua sponte evaluated the claims within the Petition for 20 suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 21 F.3d 851, 864-65 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue 22 only when the petitioner “has made a substantial showing of the denial of a constitutional 23 24 25 26 27 28 1Rodriguez requested that this Court “[c]onduct an evidentiary hearing at which proof may be offered concerning the allegations in [his] [A]mended [P]etition and any defenses that may be raised by [R]espondents.” (ECF No. 23 at 14.) Rodriguez fails to explain what evidence would be presented at an evidentiary hearing, especially since an evidentiary hearing was held before the state district court on Rodriguez’s state habeas petition. Additionally, this Court has already determined that Rodriguez is not entitled to relief, and neither further factual development nor any evidence that may be proffered at an evidentiary hearing would affect this Court’s reasons for denying relief. Accordingly, Rodriguez’s request for an evidentiary hearing is denied. 12 Case 3:15-cv-00339-MMD-WGC Document 49 Filed 05/06/20 Page 13 of 13 1 right.” With respect to claims rejected on the merits, a petitioner “must demonstrate that 2 reasonable jurists would find the district court’s assessment of the constitutional claims 3 debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. 4 Estelle, 463 U.S. 880, 893 & n.4 (1983)). Applying this standard, the Court finds that a 5 certificate of appealability is unwarranted. 6 7 8 9 VI. CONCLUSION It is therefore ordered that the First Amended Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (ECF No. 23) is denied. It is further ordered that Petitioner is denied a certificate of appealability. 10 The Clerk of Court is directed to enter judgment accordingly and close this case. 11 DATED THIS 6th day of May 2020. 12 13 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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