Opinion
CV-22-0447-PHX-MTL (JZB)
01-10-2023
Roberto Lizardi, Jr., Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
Petitioner Robert Lizardi, Jr. has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner raises two claims that fail on the merits. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.
II. Background.
A. Facts.
The Arizona Court of Appeals summarized the facts and procedural history as follows:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012)
The victim, a cab driver, was stopped at a red light when Lizardi opened the cab's rear door and sat in the backseat. Lizardi then directed the victim to drive to an apartment complex. The victim drove to the complex, stopped in
the parking lot, turned the meter off, and turned on the interior car light to wait for payment. The victim noticed that Lizardi was taking longer than usual to pay, and when he turned around to see what Lizardi was doing, Lizardi put a knife to his abdomen. The victim testified that he struggled with Lizardi for control of the knife and was injured. Then Lizardi began screaming “give me the money.” After the initial struggle, Lizardi held the victim by the mouth and put the knife to the victim's head. Eventually, the victim gave Lizardi the money he had in his pocket.
The victim testified that after he gave Lizardi his money, Lizardi ordered him to get out of the car. The car was still in the “drive” gear, so the victim jumped out of the moving car and Lizardi climbed into the driver's seat. According to the victim, once Lizardi took control of the car, he tried to run over the victim and then drove away. The victim called the police and Lizardi was later apprehended with the car in his possession.
The jury found Lizardi guilty of armed robbery, aggravated assault, and theft of means of transportation.2 The court sentenced Lizardi to presumptive prison terms of 10.5 years for armed robbery and 7.5 years for aggravated assault, as well as a 3 year term of probation for theft of means of transportation-all to be served consecutively.(Doc. 10-4, Ex. BB, at 47-48.)
B. Direct Appeal.
On February 12, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions but ordered that his terms of imprisonment for Armed Robbery and Aggravated Assault be run concurrently. (Doc. 10-4, Ex. BB, at 46-53.)
On August 24, 2016, the trial court resentenced Petitioner to concurrent terms of imprisonment on Counts 1 and 3. (Doc. 10-13, Ex. W, at 33-37.)
C. Post-Conviction Proceeding.
On February 8, 2018, Petitioner filed a timely, amended petition for post-conviction relief. (Doc. 10-5, Ex. NN, at 2-30.) On May 24, 2019, the trial court denied the petition. (Doc. 10-6, Ex. QQ, at 54-61.)
On October 8, 2020, the Arizona Court of Appeals denied relief. (Doc. 10-7, Ex. VV, at 106-111.)
III. Analysis.
On March 21, 2022, Petitioner filed the instant Petition. (Doc. 1; Doc. 13 at 7.) As stated in this Court's order, Petitioner alleged trial counsel failed to:
Respondents argue the Petition is not timely. (Doc. 10 at 15-20.) The Court elects to bypass the issue because the merits are straightforward. Venerable v. Ryan, No. CV-18-4940-PHX-ROS-JZB, 2019 WL 4228420, at <*2 (D. Ariz. Aug. 5, 2019), (“The court may review the merits of an argument in the interest of judicial economy.”) report and recommendation adopted, No. CV-18-04940-PHX-ROS, 2019 WL 4222389 (D. Ariz. Sept. 5, 2019) (citing l.umbnx v. Singletary, 520 U.S. 518, 524-525 (1997) (explaining that the court may bypass the procedural default issue in the interest of judicial economy when the merits are clear but the procedural default issues are not)). Here, Respondents argue the Petition is three days overdue. Petitioner replies that the one-year deadline was a Saturday, and Petitioner filed the Petition on the subsequent Monday. Also, the Arizona Supreme Court denied a petition for review, which may have triggered the requirement of Ariz. Rev. Stat. § 12-120.24 that a mandate issue. Whether the triggering date is the date of the ruling of the Arizona Supreme Court or the issuance of the mandate is a question of debate in this district. Compare Bassett v. Ryan, 2021 WL 6427668, at *4 (D. Ariz. 2021) (habeas limitation tolled until the Arizona Court of Appeals issued the mandate after a ruling by the Arizona Supreme Court) and Baker v. Ryan, 2021 WL 717253, at *3 (D. Ariz. 2021) (stating that “the date of the Arizona Supreme Court's decision concludes the post-conviction process and terminates the period of statutory tolling.”).
(1) “‘elicit and argue the nature of the state's central witness's [victim's] prior felony conviction,' restricting impeachment evidence that would have severely damaged the credibility of the victim's testimony”; and
(2) “‘renew her successful objection' to the prosecutor's ‘repeated elicitation of evidence in its case-in-chief and argumentation about that evidence regarding Lizardi's post-Miranda invocation of the right to remain silent.'”(Doc. 6 at 1-2.)
A. Ground One.
1. Background.
In Ground One, Petitioner argues that trial counsel provided ineffective assistance by agreeing to sanitize the victim's prior felony conviction. Prior to the victim's testimony, the State disclosed that the taxi-driver/victim (K.A.) had a 2005 felony conviction for Transportation of Illegal Aliens. (Doc. 10-7 at 40.) The attorneys advised the court they agreed the fact and date of the of the felony conviction would be permissible impeachment under Rule 609 of the Arizona Rules of Evidence. (Id.) The parties further agreed the nature and title of the felony would not be introduced. (Id.) After the victim testified, the jury asked the parties to identify crime of conviction. (Id. at 41.) The request was denied. (Id.) A subsequent jury question (Juror Question 44) asked if the “knife belonged to the victim” and if the victim was “creating” the story to protect himself from his “felony conviction.” (Id. at 46.) The prosecution then moved to reveal the nature of the conviction to the jury. (Id.) Petitioner's counsel objected. (Id. at 47-48.) The Court sustained Petitioner's objection. (Id. at 48.)
On post-conviction review, Petitioner raised this claim in the trial court and Arizona Court of Appeals. The Arizona Court of Appeals ruled as follows:
As he did below, Lizardi contends that he “received ineffective assistance of counsel from trial counsel's failure to elicit and argue the nature of the State's central witness' prior felony conviction.” He argues that the trial court's ruling was “clearly unreasonable and contrary to decisions of both the Supreme Court of the United States and the Arizona Supreme Court.” He suggests that Rule 609(a)(1)(A), Ariz. R. Evid., mandated introduction of the prior conviction. But he misapprehends the rule.
As relevant here, Rule 609(a)(1)(A) provides that “a witness's character for truthfulness by evidence of a criminal conviction” that was punishable by imprisonment for more than one year “must be admitted, subject to Rule 403, [Ariz. R. Evid.,] ... in a criminal case in which the witness is not a defendant.” And Rule 403 allows the trial court to exclude evidence “if its probative value is substantially outweighed by a danger of ... unfair prejudice.” Arizona caselaw “has consistently approved of sanitization as a means of limiting prejudicial effect.” State v. Montano, 204 Ariz. 413, ¶ 66 (2003).
Trial counsel's decision to sanitize the witness's prior conviction was consistent with these rules and our caselaw. And, as the trial court pointed out, counsel was still able to impeach the witness with the existence of the prior conviction. See State v. Smith, 244 Ariz. 482, ¶ 9 (App. 2018) (“[T]actical or strategic decisions rest with counsel.”). Accordingly, we cannot say the court abused its discretion in concluding that Lizardi had failed to establish that counsel's performance fell below reasonable standards.
In addition, Lizardi has not meaningfully challenged the trial court's additional determination that he failed to establish prejudice. Although he correctly notes that the jury asked questions about the witness's prior conviction, he has not identified any likelihood that the jury would have reached a different result had it learned the details of the conviction. Accordingly, we deem any such argument waived. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived on review when defendant cites no relevant authority and does not develop argument in meaningful way); see also Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must contain citations to legal authorities).(Doc. 10-7 at 109-110.)
2. Discussion.
“[T]he right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a violation of this right, a movant must show: (1) that counsel's performance “fell below an objective standard of reasonableness” as measured by “prevailing professional norms” and (2) prejudice, i.e., “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. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Thus, to establish deficient performance, the movant “must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To establish prejudice, the movant must show “a substantial, not just conceivable, likelihood of a different result.” Kayer v. Shinn, 141 S.Ct. 517, 523 (2020) (internal quotation marks and citations omitted).
When the claims have been resolved under Strickland by a state court, as they have here, habeas review of the ineffective assistance of counsel claims is subject to double deference because the court must give “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”);Murray v. Schriro, 882 F.3d 778, 826 (9th Cir. 2018) (noting “the double deference applicable to AEDPA claims of ineffective assistance of counsel”).
Here, the decision of the Arizona Court of Appeals was not clearly unreasonable. The court first found that counsel was not deficient by sanitizing a conviction in a manner that “was consistent with these rules and our caselaw.” (Doc. 10-7, Ex. VV, at 109-110.) This decision was not unreasonable. See Miller v. Gonzales, 746 Fed.Appx. 537, 540 (7th Cir. 2018) (noting “the compromise of admitting a sanitized version of the crimes to lessen that prejudice-referring only to his incarceration for felonies-is permissible and often preferred. See Old Chief v. United States, 519 U.S. 172, 174 (1997).”). Also, a petitioner's mere disagreement with a tactical decision cannot form the basis for a claim of ineffective assistance of counsel. Morris v. California, 966 F.2d 448, 456 (9th Cir.1991). “Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation.” Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). The court need not determine the actual reason for an attorney's actions, as long as the act falls within the range of reasonable representation. Morris, 966 F.2d at 456-457. During trial, counsel's tactical decision to sanitize the name of the conviction clearly caused the jurors to speculate about the nature of the victim's prior crime. The prosecution was aware of this concern, which is likely why the prosecution ultimately wanted to reveal the nature of the offense (transporting aliens) to the jury. Counsel's decision to oppose the prosecution's request to reveal the nature of the offense was a sound choice. Petitioner's counsel here does not argue how that decision was clearly unreasonable, or how the decision of the Arizona Court of Appeals was also unreasonable.
The Arizona Court of Appeals further found Petitioner failed to demonstrate prejudice. The court found Petitioner “has not identified any likelihood that the jury would have reached a different result had it learned the details of the conviction.” (Doc. 10-7, Ex. VV, at 110.) In his habeas petition, Petitioner has not argued against the Arizona Court of Appeals decision in any way. Petitioner has not argued how the jury, had they known the victim's prior conviction was for the offense of transporting aliens, would have been more likely to acquit the Petitioner. Petitioner is not entitled to relief on Ground One.
B. Ground Two.
In Ground Two, Petitioner alleges a violation of his Fourteenth Amendment Due Process rights and argues trial counsel rendered ineffective assistance concerning Petitioner's alleged invocation of his right to remain silent.
1. Background.
During trial, Officer Conaway testified that Petitioner made the following statements in a post-Miranda interview:
Q. Did you ask him how he got the taxicab?
A. Yes, I did.
Q. What did he say?
A. He said he had gotten into a fight.
Q. What was his demeanor when you asked him-when you first asked him how he got the taxicab?
A. He was kind of quiet, and hung his head down as he talked to me.
Q. He hung his head down?
A. Yes, sir.
Q. And did you ask him who he was fighting with?
A. Yes, sir, I did.
Q. What did he say?
A. He told me that cab driver to the cab.
Q. Did you ask him if he used the-did you ask him if he used the switch blade knife in Exhibit No. 10 during the time when he took the taxicab, when he was fighting?
A. Yes, I did.
Q. What did he say?
A. He told me that-he kind of paused and hung his head down again and told me: Well, if I tell you, you'll hold it against me.(Doc. 10-9, Ex. KKK, at 174-75 (emphasis added).)
The prosecution asked a separate witness about the statement the following day (see doc. 10-9, Ex. LLL, at 274), and twice argued to the jury that the statement was an admission by Petitioner (id. at 274-75). Petitioner argued in the Arizona courts that the statement was an invocation of Petitioner's right to remain silent. (See Doc. 10-7, Ex. SS, at 21, 60.) The Arizona Court of Appeals ruled as follows:
[T]he trial court correctly determined that Lizardi's statement, “If I tell you, you'll hold it against me,” was not an effective invocation of his right to remain silent.
“A prosecutor may not comment on a defendant's invocation of his Fifth Amendment rights.” State v. Parker, 231 Ariz. 391, ¶ 64 (2013). Although “invocation of the right to remain silent need not be made with precision,” State v. Cota, 229 Ariz. 136, ¶ 26 (2012), it “must be unequivocal and
unambiguous, as judged from the perspective of a reasonable officer under the totality of the circumstances,” State v. Payne, 233 Ariz. 484, ¶ 40 (2013); see Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010).
Viewed in context, Lizardi's conditional and evasive statement cannot be construed as an unequivocal and unambiguous invocation of the right to remain silent. Cf. Parker, 231 Ariz. 391, ¶65 (defendant's statement, “If I tell you that I took them, ... [t]hen you're going to think I did it,” was not invocation of right to remain silent, and prosecutor could thus comment on defendant's statements). The prosecutor's questions and comments thereon were therefore permissible, and trial counsel was not ineffective for failing to object. See Id. The trial court thus did not abuse its discretion in concluding that Lizardi had failed to establish his counsel's performance fell below reasonable standards.(Doc. 10-7, Ex. VV, at 111.)
2. Discussion.
If a person being questioned “indicates in any manner that he does not wish to be interrogated, the police may not question him.” Miranda v. Arizona, 384 U.S. 436, 445 (1966). “However, when a suspect invokes his Fifth Amendment right to cut off police questioning on a specific topic, he must do so ‘unambiguously.'” United States v. Garcia-Morales, 942 F.3d 474, 476 (9th Cir. 2019) citing Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010).
Here, the decision of the Arizona Court of Appeals was not clearly unreasonable. Petitioner began his statement with the equivocal words “Well, if I tell you...” (Doc. 10-9, Ex. KKK, at 175 (emphasis added).) This statement did not invoke Petitioner's right to silence. See Garcia v. Long, 808 F.3d 771, 777 (9th Cir. 2015) (observing that a “suspect's right to cut off police questioning is triggered only when the suspect unambiguously and unequivocally invokes it”). Petitioner also did not refer to his rights or his desire to remain silent. See id. (“when it is objectively unclear whether the suspect is invoking his Miranda rights, the police may continue to ask questions.”). Petitioner was objectively unclear because he did not refer to his rights when he made his statement. See also United States v. Nelson, 450 F.3d 1201, 1212 (10th Cir. 2006) (finding “I guess I'm ready to go to jail then” was “at best an ambiguous or equivocal statement” that did not invoke defendant's right to silence); Garcia-Morales, 942 F.3d at 476 (finding lack of invocation where defendant said he was “not feeling cool” with the video recording, and when asked to give the name of a co-conspirator responded, “‘I don't . . .' while trailing off and shaking his head ‘no' once.”). Fairminded jurists could disagree about whether Petitioner's statement was unambiguous and unequivocal.
There was also no error regarding the prosecution's argument of Petitioner's statement. See Garcia-Morales, 942 F.3d at 478 (after finding a lack of invocation of right to silence, the Court “must similarly conclude that he has failed to establish the existence of error related to the prosecution's introduction of evidence on that topic”). The denial of Petitioner's claims were not contrary to or an unreasonable application of clearly established federal law, nor were they an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) & (2).
IV. Conclusion.
The Court finds that Grounds One and Two fail on the merits. The Court will therefore recommend that the Petition be denied and dismissed with prejudice.
Accordingly, IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.