United States District Court, W.D. Oklahoma
JIMMY NAZARIO, JR. Petitioner,
JOE ALLBAUGH, Respondent.
HEATON U.S. DISTRICT JUDGE.
a state prisoner appearing through counsel, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his state court conviction. The matter was
referred to U.S. Magistrate Judge Bernard M. Jones for
initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B) and (C). Judge Jones has issued a Report and
Recommendation (the “Report”) recommending that
the petition be denied. Petitioner has filed an objection to
the Report which triggers de novo review of by this
court of proposed findings or recommendations to which
objection has been made. Casanova v. Ulibarri, 595
F.3d 1120, 1123 (10th Cir. 2010); see also 28 U.S.C.
in Comanche County convicted petitioner of second degree
murder, and he was sentenced to twenty-five years
imprisonment. Petitioner's conviction was affirmed on
direct appeal by the Oklahoma Court of Criminal Appeals
(“OCCA”). Petitioner raised four grounds for
relief in his direct appeal, all of which the OCCA reviewed
and rejected in a summary opinion. Petitioner did not seek
post-conviction relief in state court.
petitioner relies on the same four grounds that were raised
on direct appeal. Because the OCCA addressed the merits of
petitioner's claims, this court's review is governed
by 28 U.S.C. § 2254(d). The Supreme Court has repeatedly
acknowledged that Section 2254(d) “erects a formidable
barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Burt v.
Titlow, 571 U.S. 12, 134 S.Ct. 10, 16 (2013). Relief may
only be granted “where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with [the Supreme] Court's
precedents.” Harrington v. Richter, 562 U.S.
86, 102 (2011).
has limited his objections to the Report's
determinations: (1) that trial counsel was not ineffective by
failing to impeach two witnesses and to elicit testimony
favorable to self-defense (from Ground One); (2) that trial
counsel was not ineffective by failing to request a jury
instruction on the lesser included offense of manslaughter
(from Ground Two); and (3) that the court should deny
petitioner's request for an evidentiary hearing on the
ineffective assistance of counsel claims. Petitioner argues
both that trial counsel was ineffective and that the
OCCA's decision with respect to these issues was
“unreasonable in light of the facts and contrary to, or
an unreasonable application of Strickland v.
Washington. Doc. # 15, p. 6.
constitutionally deficient performance by counsel, a
petitioner must establish both that counsel's performance
fell below an objective standard of reasonableness and that
there was prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 688 & 692 (1984). A court
considering an ineffective assistance claim applies a
“strong presumption” that counsel's
representation was within the “wide range of reasonable
professional assistance.” Id. at 689. With
respect to the prejudice element, a petitioner must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. It is not enough to show that counsel's errors had
some conceivable effect on the outcome of the proceeding.
Rather, the errors must be “so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. The Strickland
standard for judging counsel's representation is a
“most deferential one” and that is true even for
a court reviewing the performance in the first instance.
Harrington, 562 U.S. at 105. But this court is not
reviewing the matter in the first instance. Rather, it is
assessing whether the state court's determination of the
matter involved an “unreasonable application of”
the Strickland standard.
purposes of § 2254(d), “‘an unreasonable
application of federal law is different from an incorrect
application of federal law.'” Id. at 101
(quoting Williams v. Taylor, 529 U.S. 362, 410
(2000)). The state court determination is granted
“deference and latitude that are not in operation when
the case involves review under the Strickland
standard itself. Id. “A state court's
determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could
disagree' on the correctness of the state court's
decision.” Id. (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Stated otherwise,
the petitioner must show that the state court's ruling
was “so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”
Id. at 103. And even a “strong case for relief
does not mean the state court's contrary conclusion was
unreasonable.” Id. at 102.
alleges that counsel's failure to impeach witnesses Munoz
and Dutchover with prior statements to police and with
preliminary hearing testimony was ineffective assistance of
counsel because such impeachment would have “undercut
their overall credibility, and therefore the State's
theory that Petitioner committed second degree murder.”
Doc. #15, p. 2. But petitioner was relying on these witnesses
to establish his self-defense argument. Thus, it cannot be
stated with certainty that it was unreasonable for counsel to
fail to further impeach those witnesses. Also, as the Report
highlights, the very statements that petitioner believes
should have been used to impeach the witnesses undercut his
self-defense claim. While impeaching a witness with prior
inconsistent statements may be “elementary, and
effective cross-examination” as petitioner states, not
impeaching a witness may reasonably be part of a
counsel's strategy that this court will not second guess
on hindsight during habeas review.
also asserts that trial counsel should have elicited
additional testimony from Munoz and Dutchover regarding his
claim of self-defense. Specifically, petitioner points to
testimony Dutchover provided at the preliminary hearing as
more supportive of his claim of self-defense. But both Munoz
and Dutchover had admitted that certain of their earlier
statements and testimony were untruthful. Counsel's
decision to avoid highlighting this fact, when relying on the
witnesses to establish a defense, is within the range of
reasonable choices prudent counsel may make. Further, there
is no reasonable probability that a different choice would
have affected the outcome.
also argues that the failure of trial counsel to seek an
instruction on the lesser offense of manslaughter constituted
ineffective assistance of counsel and that the OCCA's
rejection of this argument was an unreasonable application
of, or contrary to, Strickland. But, as noted in the
Report, the OCCA concluded that there “was no evidence
to support the giving of the instructions as the evidence did
not show that Nazario's actions were aroused by adequate
provocation.” Doc. #8-5, p. 3. This conclusion was not
so lacking in justification as to preclude the possibility
for fairminded disagreement about it.
the standards of Strickland and Harrington
to petitioner's motion, the court concludes he has failed
to show a basis for habeas relief. The court cannot say that
the state court determination was so lacking in justification
that fairminded jurists could not have reached it. Further,
petitioner has not shown a sufficient basis for overcoming
the limitation of § 2254(d), and there is hence no basis
for the requested evidentiary hearing. See Cullen v.
Pinholster, 563 U.S. 170, 185 (2011).
the Report and Recommendation [Doc. #14] is
ADOPTED and the petition for writ of habeas
corpus [Doc. #1] is DENIED. Because
petitioner has not “made a substantial showing of the
denial of a constitutional right, ” 28 U.S.C. §
2253(c)(2), a certificate of appealability is also denied.