Valdovinos v. McGrath , 423 F. App'x 719 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FELIX SOLORIO VALDOVINOS, No. 08-15918
Petitioner - Appellant, D.C. No. 4:02-CV-01704-CW
v.
MEMORANDUM *
JOE MCGRATH,
Respondent - Appellee.
On Remand from the United States Supreme Court
Before: B. FLETCHER and KLEINFELD, Circuit Judges, and DUFFY, Senior
District Judge.**
This memorandum is occasioned by the Supreme Court’s vacatur and
remand of our prior disposition for further consideration in light of Harrington v.
Richter, 131 S. Ct. 770 (2011). Petitioner-Appellant Felix Solorio Valdovinos
appeals the district court’s denial of his amended habeas corpus petition
challenging his jury conviction of first degree murder. He contends that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, Senior District Judge for the
U.S. District Court for Southern New York, New York, sitting by designation.
government withheld potentially exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and that his trial counsel’s performance fell below
the level required under Strickland v. Washington, 466 U.S. 668 (1984). Applying
28 U.S.C. § 2242 deference to the state court’s conclusions, we affirm the district
court’s denial of the petition.
I.
The facts underlying this appeal are known to the parties and need not be
repeated here. The district court denied habeas relief on March 12, 2008, and
certified two issues for appeal: (1) whether the Brady violations denied Valdovinos
due process; and (2) whether Valdovinos’s trial counsel provided ineffective
assistance by failing to object to the prosecution’s introduction of Lopez’s out-of-
court statements.1 In addition, the state appeals the district court’s decision to
allow Valdovinos to amend his habeas petition.2 We have jurisdiction under 28
U.S.C. § 2253.
II.
1
Valdovinos raises an uncertified issue in his opening brief. We decline to
expand the scope of the COA to include the uncertified issue.
2
The state is not required to obtain a COA before raising an issue on appeal.
Fed. R. App. P. 22(b)(3).
2
We first determine whether the district court erred in staying Valdovinos’s
petition while he exhausted additional claims in state court and in allowing
Valdovinos to amend his habeas petition. We review for abuse of discretion a
district court’s stay and abeyance of a mixed petition containing both exhausted
and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 279 (2005). We also
review for abuse of discretion a district court’s decision to allow a habeas
petitioner to amend his petition. Hebner v. McGrath, 543 F.3d 1133, 1136 (9th
Cir. 2008).
In granting the stay and abeyance of Valdivinos’s petition, the district court
emphasized that Valdovinos had not engaged in dilatory tactics and had no
motivation for delay, as he is not a capital defendant. The court also noted that
Valdovinos did not bear the blame for omitting the additional evidence rendering
his claims unexhausted because he had no knowledge of it due to the misconduct
of the prosecution. We hold that the district court did not abuse its discretion in
granting the stay in accordance with this reasoning. See Rhines v. Weber, 544 U.S.
269, 278 (2005) (opining that a district court would likely abuse its discretion in
denying such a stay where “the petitioner had good cause for his failure to exhaust,
his unexhausted claims are potentially meritorious, and there is no indication that
the petitioner engaged in intentionally dilatory tactics”).
3
Untimely amendments to an original habeas petition are permissible of they
arise “from the same core facts as the timely filed claim” so that they relate back to
the original, timely petition. Mayle v. Felix, 545 U.S. 644, 657 (2005). The
district court concluded that Valdovinos’s revised Brady claim related back to the
Brady claim in the original petition and that the amended ineffective assistance of
counsel claim arose from the same conduct, transaction, or occurrence as set forth
in the original pleading. We agree. We therefore hold that the district court did
not abuse its discretion in permitting amendment of the original habeas petition to
add newly discovered evidence supporting both the Brady and the ineffective
assistance of counsel claims.
III.
In accordance with the standard set forth in AEDPA, a court may grant a
writ of habeas corpus only if the state court’s ruling:
(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.
28 U.S.C. § 2254(d). “The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Schriro v.
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Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410
(2000)).
In the event that the state court issues a summary denial of the habeas
petition, the petitioner must still meet his burden by showing there was no
reasonable basis for the state court to deny relief. Harrington v. Richter, 131 S. Ct.
770, 784–85 (2011). We therefore apply § 2254(d) deference to the state court’s
summary denial of Valdivinos’s petition for habeas relief.
A.
We first turn to the substance of Valdovino’s Brady claim. A Brady claim is
composed of three necessary elements: “(1) [t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is
impeaching, (2) that evidence must have been suppressed by the State, and (3)
prejudice must have ensued.” Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir.
2008) (quotations and citation omitted). “To determine whether prejudice exists,
we look to the materiality of the suppressed evidence.” Id.Here, the suppressed evidence includes the undisclosed photo lineups, the
Lopez impeachment information, the anonymous letter, and the photograph of
Mongia. The cumulative effect of the suppressed evidence leads us to conclude
5
that Valdivinos did not receive a fair trial resulting in a verdict worthy of a
confidence, that is, that the government committed a Brady violation.
Our review of the state court’s unexplained denial of the petition, however,
is limited by § 2242(d). Thus, we grant the petition only if “the state court’s ruling
on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
Although we disagree with the state court’s ruling, we cannot conclude that it
lacked any reasonable basis to deny relief. The state court could have concluded
that the withheld exculpatory evidence did not cast doubt on the outcome of the
trial because the evidence pointing to Valdovinos’s guilt — the eyewitness’
testimony, the similarities between his car and the shooter’s car, and the fact that
he fled the state immediately after the shooting — was sufficiently strong. That
the district court agreed with the state court that no Brady violation occurred
provides further indication that fairminded jurists can and do disagree as to the
merits of this claim. Therefore, despite our conclusion that Valdovinos’s Brady
rights were violated, we cannot hold that he is entitled to habeas relief.
B.
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We now turn to the substance of the ineffective assistance of counsel claim.
To prevail on an ineffective assistance of counsel claim, a petitioner must
establish: (1) that counsel's performance was deficient, that is, that it fell below an
objective standard of reasonableness; and (2) that he was prejudiced by the
performance, that is, that "there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Valdovinos claims his trial counsel provided ineffective assistance by failing
to object to pre-trial statements that Lopez made to investigating police, which the
prosecution introduced through the testimony of Sergeant Ramirez. The state court
concluded that counsel’s failure to object to Lopez’s out-of-court statement did not
prejudice Valdivinos. Because we agree with the district court that Lopez’s
testimony was internally contradictory and did not strongly incriminate Valdivinos,
we conclude that the state court’s rejection of this claim was reasonable.
IV.
Because the state court’s ruling on Valdivino’s petition was not “so lacking
in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement,” he is not entitled
to habeas relief. Harrington, 131 S. Ct. at 786–87.
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AFFIRMED.
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