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Lopez v. Filson

United States District Court, D. Nevada

September 10, 2019

RICARDO JOSE LOPEZ, Petitioner,
v.
FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         This counseled habeas matter pursuant to 28 U.S.C. § 2254 challenging Petitioner Ricardo Jose Lopez's conviction of murder in the first degree with the use of a deadly weapon and attempted murder with use of a deadly weapon (ECF No. 67; Exhibit (“Ex.”) 37; Ex. 48)[1] comes before the Court for consideration of the merits of the surviving claims of the second amended petition (ECF No. 67). Respondents have answered (ECF No. 88), and Petitioner has replied (ECF No. 89).

         I. BACKGROUND

         On October 11, 2003, Petitioner shot Gustavo Gonzalez and Francisco Perez, Jr. in the parking lot of Hurricane Harry's, killing Gonzalez and injuring Perez. (See Ex. 8; Ex. 33 (Tr. 28-31).) After fleeing the scene and a brief pursuit, Petitioner was arrested and charged with murder and attempted murder.

         Initially, Petitioner was represented by the public defender. (See Ex. 1.) But after more than two years, and just months before the latest trial setting, Petitioner retained Robert Lucherini to represent him. (See Ex. 19.) Although Lucherini moved to appear on Petitioner's behalf on March 28, 2006 (id.), a representative indicated just a week later that he could no longer do so. (Ex. 20.) By April 20, 2006, however, Lucherini was again appearing on Petitioner's behalf, telling the court that although he had “a lot of work to do real quickly” he could be ready for the trial set for June 5, 2006. (Ex. 21.) At calendar call on May 30, 2006, however, Lucherini sought a continuance due to other court engagements. The court continued the trial to June 19, 2006, but indicated it would continue it further only if both parties agreed. (Ex. 22.) There was apparently no agreement, as trial commenced on June 19, 2006. At trial, the following relevant evidence was presented.

         At around 2:30 a.m. on October 11, 2003, Gustavo Gonzalez, Luis Galvan, and Francisco Perez were leaving Hurricane Harry's in Las Vegas and walking toward Gonzalez's car. (Ex. 33 (Tr. 92-94, 134).) As Gonzalez stepped off into the bushes, a car pulled into the lot behind Galvan and Perez. (Id. at Tr. 94-96, 136.) The car was driven by Crystal Sanchez and contained her boyfriend, Jose Lizaola in front, and Petitioner in back. (Id. at 94-96; Ex. 34 (Tr. 88-89).) As the car drove by, Petitioner flashed a gun. (Ex. 33 (Tr. 94-96, 136).) Galvan was not paying attention and did not see the gun but heard Perez say, “Hey that guy just flashed a gun at me.” (Id. at 135.)

         Perez approached the group, now out of the car, and asked, “Why you showing me that gun?” (Ex. 33 (Tr. 94-96, 135).) Petitioner said they were from Los Angeles, to which Perez replied, “[W]ell we have no problem with your kind.” (Id. at 136.) While Lizaola said that they “weren't looking to gang-bang or anything like that, ” he started to unbutton his cuffs and walk toward the group. (Ex. 34 (Tr. 98-101).) Sanchez stopped him, which diffused the tension, and after a short conversation, they all shook hands and parted ways, saying, “[T]hat's right, there's nothing to fight about it, nobody's gang banging.” (Ex. 33 (Tr. 94-97, 136); Ex. 34 (Tr. 90, 101).)

         As Gonzalez, Perez, and Galvan walked to their car, Gonzalez asked what had happened. Galvan and Perez said Petitioner had pulled a gun but everything was fine. (Ex. 33 (Tr. 125, 137).) As they walked, they sounded angry, and one of them said, “I'm not afraid of those MFs.” (Ex. 34 (Tr. 54-55).)

         On the way out, Gonzalez pulled his car up to the other group, which was standing near Sanchez's car. (Ex. 33 (Tr. 137); see also Id. at 98-99; Ex. 34 (Tr. 90-91).) Petitioner was on the phone with his girlfriend. (Ex. 34 (Tr. 90).) Gonzalez rolled down his window and said either, “Why you pulling a gun on your own race?” or “you f[***]ing Mexicans.” (Ex. 33 (Tr. 137); see also Id. at 98-99; Ex. 34 (Tr. 91, 135-36).) Petitioner responded either, “I'm not Mexican. F[***] Mexicans” or “I'm not Mexican; I'm Cuban.” (Ex. 33 (Tr. 138); Ex. 34 (Tr. 135-36).) Lizaola said something like, “What is it that you want?” (Ex. 34 (Tr. 102-03).) In the back seat, Perez could be heard saying “Let's go, you know, it's okay, it's all squashed, it's all forgotten” but Gonzalez refused, as though he didn't want to leave it at that. (Id. at 91.)

         Sanchez was closest to Gonzalez's car; Petitioner was behind her. (Id. at 105.) Sanchez watched as Gonzalez turned around to tell Perez “no, ” and at this point his hands vanished from her view. (Id. at 103.) He began looking down at his lap, which caused Sanchez to fear she was going to be shot. (Id. at 103-04.)

         Although Sanchez testified that Petitioner was not really paying attention during this time, Galvan testified that it was Petitioner who was escalating the confrontation by holding his hand up to his gun, which was in his waistband, and repeatedly saying, “Do you want some?” (Ex. 33 (Tr. 149-50); Ex. 34 (Tr. 105).) According to Perez and Galvan, no one in their car had a weapon or claimed to have a weapon. (Ex. 33 (Tr. 103, 139, 141).)

         Perez testified he could not hear the conversation between Gonzalez and Petitioner, but he got out of the car and said, “I thought we squashed this.” (Id. at 99-100, 138.) According to Sanchez, Perez said something like, “[W]hat, punk, what are you going to do, or what do you want to do?” (Ex. 34 (Tr. 105).) Sanchez testified that Perez jumped out of the car and came running quickly towards the group, throwing his hands up in the air and trying to start a confrontation. (Id. at 91.) But Perez testified that he was not rushing the group, and that his hands were up and empty. (Ex. 33 (Tr. 100, 138).)

         Within seconds, Petitioner opened fire. (Ex. 33 (Tr. 99-100, 138); Ex. 34 (Tr. 105-06).) Perez was hit just below the belly button. (Ex. 33 (Tr. 101-02).) Perez hopped back into the car and said, “I've been shot. . . [L]et's go.” (Id. at 101-02, 138.) Gonzalez turned around to look at what had happened, but before he was able to turn back around, Petitioner had walked up to the driver's side window and fired two shots directly into Gonzalez. (Id. at 35, 101-02, 138.) Galvan testified that at the time he was shot, Gonzalez's hands were on the steering wheel. (Id. at 102, 139.)

         Gonzalez got quiet and the car moved slowly up onto a curb. (Id. at 39, 103, 139-40.) Petitioner jumped into the other car, which drove off. (Id. at 104.) Following pursuit by police first in their vehicles and then on foot, Petitioner was apprehended a short time later, arrested and charged. (See Id. at 40; Ex. 34 (Tr. 170-91).)

         Nearly the entire incident was caught on camera by an officer who was conducting surveillance nearby. (See Ex. 33 (Tr. 28-31, 45).) Although the video at times is not entirely in focus, it clearly, and importantly, shows that when Perez got out of the car, he was not moving quickly and his hands were up and empty. (See Ex. 109.) It also shows that three seconds elapsed between the shot fired at Perez and the second two shots fired at Gonzalez. It also shows that Petitioner lingered near Gonzalez's car for five seconds after the second two shots, before turning around and moving-not quickly- toward Sanchez's car. (See id.) According to the officer who witnessed the event, it appeared that after Petitioner shot Gonzalez, he stepped away from the vehicle for a moment and then stepped backed to look inside. (Ex. 33 (Tr. 36-37).)

         During closing arguments, the prosecutor argued:

Now, shooting someone, alone, indicates an intent to kill. When you point a gun at someone and fire, your intention is to kill - to kill them. But more importantly in this case, where the defendant shot at Francisco is important. He didn't shoot at his feet. He didn't shoot in the air. He didn't shoot a warning shot. He shot square into his body; and it's just by luck that the bullet hit the belt buckle and button of Francisco's pants and he didn't die. The defendant definitely had the intent to kill when he raised up a gun and shot directly into Francisco's body.

(Ex. 35 at 29.) The prosecutor also asserted that Gonzalez's “conduct in addressing [Petitioner] and saying that he didn't like the fact that he had flashed a gun at his friends is not something that legally changes the conduct of [Petitioner].” (Id. at 26.)

         Following deliberations, the jury returned a verdict finding Petitioner guilty of attempt murder with use of a deadly weapon and first-degree murder with use of a deadly weapon. (Ex. 37.) The penalty phase then commenced. (Ex. 38.)

         During the penalty phase, the State presented evidence of Petitioner's criminal history, including a conviction for malicious destruction of property in connection with an uprising at a youth detention facility. (Id. at 10.) Evidence also was presented that Petitioner had been arrested on April 8, 1998, for kidnapping, kidnapping with intent to commit sexual assault, sexual assault victim under 16, assault with a deadly weapon, switchblade, harassment first offense, switchblade, kidnapping conspirator, open or gross lewdness and disorderly conduct, but that ultimately he was adjudicated of only harassment and disorderly conduct, sentenced to probation, and the remaining charges dismissed. (Id. at 12.)

         The defense presented one witness: Petitioner's uncle, Eduardo Rosas. Rosas explained that Petitioner had a hard home life because his mother used a lot of drugs, the men in her life would beat Petitioner, and there were lots of fights, yelling, and screaming in Petitioner's homes. (Id. at 39-40.) He also testified that Petitioner's dad left when Petitioner was 4 or 5 after he discovered that Petitioner's mom was having an affair and attacked her and her lover with a machete. (Id. at 41.)

         In closing arguments, the State pushed for the maximum sentence on the grounds that Petitioner had a significant juvenile criminal history and had already been given several opportunities to turn his life around. (Id. at 60-63.) Defense counsel argued that Petitioner's life and actions were the result of his difficult home life and urged the jury to give him the hope of one day being released. (Id. at 66-68.) The jury was then instructed to elect among three options: (1) life without the possibility of parole; (2) life with the possibility of parole after 40 years; and (3) a definite term of 100 years with the possibility of parole after 40 years. (Ex. 39.) After deliberations, the jury returned a verdict sentencing Petitioner to life in prison without the possibility of parole. (Ex. 40.)

         Following a sentencing hearing before the trial court, the court entered judgment of conviction sentencing Petitioner to consecutive terms of life without the possibility of parole on the first degree murder count and deadly weapon enhancement, and two consecutive terms of 53 to 240 months on the attempted murder count and deadly weapon enhancement. (Exs. 42, 43, 48.)

         Petitioner thereafter pursued direct appeal and postconviction habeas claims for relief in state court.[2] Having been denied relief on all fronts, he now seeks relief via the instant petition for relief pursuant to 28 U.S.C. § 2254.

         II. STANDARDS

         A. Merits

         28 U.S.C. § 2254(d) provides the legal standards for this Court's consideration of the merits of the petition in this case:

         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 -

(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.

         AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-94 (2002). This Court's ability to grant a writ is limited to cases where “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt”) (internal quotation marks and citations omitted).

         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.” Andrade, 538 U.S. 63 (first quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000); then citing Bell, 535 U.S. at 694).

         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.” Andrade, 538 U.S. at 74 (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 state courts' decisions on the merits are entitled to deference under AEDPA and may not be disturbed unless they were ones “with which no fairminded jurist could agree.” Davis v. Ayala, 135 S.Ct. 2187, 2208 (2015).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” Id. at 973. Rather, AEDPA requires substantially more deference:

[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         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. Cullen, 563 U.S. at 181.

         B. Procedural Default

         When a claim is procedurally defaulted, the Court may consider the claim only if “a constitutional violation has probably resulted in the conviction of one who is actually innocent, ” or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

         To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

         Ineffective assistance of post-conviction counsel can provide a basis for cause in some circumstances. Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the United States Supreme Court created a narrow, equitable rule that allows petitioners to, in some cases, establish cause for a procedural default where the failure to raise a substantial claim of ineffective assistance of trial counsel in initial-review collateral proceedings is due to the absence or ineffective assistance of post-conviction counsel. Id. at 16-17. The Martinez rule is an exception to the general rule that errors of post-conviction counsel cannot provide cause for a procedural default. Coleman, 501 U.S. at 752-54; Smith v. Baldwin, 510 F.3d 1127, 1146-47 (9th Cir. 2007). Martinez provides an exception only for substantial claims of ineffective assistance of trial counsel. It cannot supply cause to excuse the procedural default of a substantive claim of trial court error. See Martinez, 566 U.S. at 16-17.

         III. ANALYSIS

         A. Ground 1

         In Ground 1, Petitioner asserts that his Fifth and Fourteenth Amendment due process rights were violated because insufficient evidence supported his convictions of murder and attempted murder beyond a reasonable doubt.[3] (ECF No. 67 at 10.) The Nevada Supreme Court addressed this claim as follows:

Second, appellant argues that there was insufficient evidence presented to convict him of both first-degree murder and attempted murder. At trial, multiple witnesses testified that appellant first displayed a weapon and soon after shot two unarmed victims, while one had both hands displayed to show he was not armed and the other was sitting in his vehicle with his hands on the steering wheel. Further, the incident was recorded by a police officer conducting unrelated surveillance of the area and the recording was played for the jury. Based on this evidence, we conclude that the State met the elements of first-degree murder and attempted murder and a reasonable juror could have been convinced of appellant's guilt beyond a reasonable doubt.

(ECF No. 107 at 2.) Neither the Nevada Supreme Court's legal conclusion nor its factual findings were objectively unreasonable.

         A federal court collaterally reviewing a state court conviction for sufficiency of the evidence does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992). Rather, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis original). The Jackson standard “looks to whether there is sufficient evidence which, if credited, could support the conviction.” Schlup v. Delo, 513 U.S. 298, 330 (1995). That is, “faced with a record of historical facts that supports conflicting inferences” the court “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010).

         Petitioner argues that the evidence did not show he deliberated or had the specific intent to kill or that he premeditated. To the contrary, he asserts that the evidence establishes only that he reacted, without deliberation, in response to a threat from the victims. (ECF No. 67 at 10-13.)

         To make this argument, Petitioner challenges as unreasonable the state courts' factual findings. Petitioner argues that it was unreasonable to conclude that Gonzalez was unarmed because a bat was found on the passenger floorboard of the car and Gonzalez may have been trying to reach it. He further argues that it was unreasonable to find that Gonzalez's hands were on the steering wheel when shot because the latter was supported by the testimony of only one witness. And he argues it was unreasonable to find that Petitioner flashed a gun, because that too was supported by the testimony of only one witness. (Id. at 13-14.) Petitioner additionally argues that any finding Petitioner was threatening the victims is contrary to the evidence, because the victims would not have driven back toward Petitioner's group if they were threatened, and Petitioner was on his cell phone when the second confrontation was taking place.

         The state court's factual findings were not objectively unreasonable. Even assuming Gonzalez was reaching for a bat at the time he was shot, there is no evidence he had the bat in hand when Petitioner fired, so the finding that all the victims were unarmed was not unreasonable. And a factual finding is not unreasonable merely because it is supported by the testimony of only one witness, particularly where, as in this case, few other witnesses would ...


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