Lopez v. Williams

• Decision Date: 28 June 2021
• Docket Number: Case No.: 2:18-cv-00480-JCM-NJK
• Parties: ALEXANDER LOPEZ, Petitioner, v. BRIAN WILLIAMS, et al., Respondents.
• Court: U.S. District Court — District of Nevada

ALEXANDER LOPEZ, Petitioner, v. BRIAN WILLIAMS, et al., Respondents.

Case No.: 2:18-cv-00480-JCM-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

June 28, 2021

Order

Alexander Lopez, a Nevada prisoner, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. This court denies Lopez's habeas petition, denies him a certificate of appealability, and directs the clerk of the court to enter judgment accordingly.

I. BACKGROUND

Lopez's convictions are the result of events that occurred in Clark County, Nevada on April 15, 2012. (ECF No. 14-26.) On April 15, 2012, around 1:00 a.m., Christian Ernesto Navarro returned home after dropping his date off at her residence. (ECF No. 32-1 at 150, 152-53.) Navarro was walking from the parking lot of his apartment complex to his apartment, a distance of approximately 50 feet, when he saw "two people comin' at [him]." (Id. at 153-55.) When the two individuals were near Navarro, one of the individuals put his hand on Navarro's chest and pulled out a gun. (Id. at 157-58.) The individual then told Navarro in Spanish to "[d]rop [his] stuff or [he]'ll blow [his] head off." (Id. at 157.) Navarro followed the individual's instructions and placed his keys, cellular telephone, and wallet on the ground. (Id. at 160.) The second individual picked up Navarro's belongings from the ground, and Navarro "started walking away" as instructed by the individual with the gun. (Id. at 161-62.) When Navarro turned back around, he saw the two individuals run to a vehicle parked nearby and drive away. (Id. at 162.)

Detective Lance Spiotto testified that Navarro's stolen cellular telephone was pawned following the robbery. (ECF No. 15-1 at 26.) Detective Spiotto obtained surveillance video footage from the pawn store, showing that Telana Bell was the individual who pawned the cellular telephone. (Id. at 27.) Detective Spiotto contacted Bell, and Bell told Detective Spiotto a story about how she acquired the cellular telephone. (Id. at 28.) Bell's story involved the Stratosphere Hotel, but after Detective Spiotto obtained surveillance footage from that hotel, he determined that Bell had lied. (Id.) After speaking with Bell again, Detective Spiotto developed Lopez as a suspect. (Id. at 29.) Detective Spiotto then developed a photograph lineup, which included Lopez, and showed it Navarro. (Id. at 30.) Navarro identified Lopez as the man with the gun who robbed him. (Id. at 35-36.)

A jury found Lopez guilty of conspiracy to commit robbery and robbery with the use of a deadly weapon. (ECF No. 15-3.) Lopez was adjudged a habitual criminal and originally sentenced to 120 months to life for the conspiracy conviction and 120 months to life for the robbery conviction plus a consecutive term of 12 to 30 months for the deadly weapon enhancement.¹ (ECFNo. 15-11.) Lopez appealed, and the Nevada Supreme Court affirmed on July 22, 2014. (ECF No. 16-9.) Remittitur issued on August 19, 2014. (ECF No. 16-10.)

Lopez filed a pro se state habeas petition and a counseled supplemental petition on May 26, 2015, and June 6, 2016, respectively. (ECF Nos. 16-14, 16-26.) The state district court denied the petition on January 31, 2017. (ECF No. 16-31.) Lopez appealed, and the Nevada Court of Appeals affirmed on January 9, 2018. (ECF No. 17-16.) Remittitur issued on February 5, 2018. (ECF No. 17-17.)

Lopez's pro se federal habeas petition was filed on March 15, 2018. (ECF No. 1.) The respondents moved to dismiss the petition on November 19, 2018. (ECF No. 13.) This court granted the motion in part, dismissing ground 3(a) to the extent it asserted ineffective assistance of appellate counsel; dismissing ground 3(b) to the extent it asserted appellate counsel was ineffective for failing to investigate, familiarize himself with discovery, file pretrial motions or "effect a sound strategy"; dismissing ground 3(c) to the extent it asserted ineffective assistance of appellate counsel; dismissing ground 3(d) except to the extent it asserted that appellate counsel was ineffective for failing to challenge the admission of the evidence relating to his accusers; and dismissing ground 3(e) except to the extent it asserted appellate counsel was ineffective for failing to challenge the admission or omission of jury instructions on appeal. (ECF No. 22.) The respondents answered the petition on November 25, 2019, and Lopez replied on January 30, 2020. (ECF Nos. 35, 38.)

In his remaining grounds for relief, Lopez raises the following violations of his federal constitutional rights:

1(a). His trial counsel failed to relay an offer.

1(b). His trial counsel failed to inform him that the state had offered a plea deal and/or failed to seek the possibility of a plea deal.

1(c). His trial counsel lost his ability to receive a plea deal.

2. The state improperly vouched for Navarro's credibility and made an argument intended to inflame the passions of the jury.

3(a). His trial counsel failed to meet, confer or have any pretrial contact with him.

3(b). His trial counsel failed to investigate, file pretrial motions, or familiarize himself with discovery.

3(c). His trial counsel failed to challenge the photographic lineup.

3(d). His trial and appellate counsel failed to challenge the admission of evidence relating to his accusers.

3(e). His trial and appellate counsel failed to object to the admission and/or omission of jury instructions.

3(f). His trial counsel failed to properly cross-examine the state's key witness at trial.

3(g). There were cumulative errors.

4. His appellate counsel erred in including grounds of ineffective assistance of counsel in his direct appeal.

(ECF No. 1.)

II. STANDARD OF REVIEW

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA"):

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.

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." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v.Cone, 535 U.S. 685, 694 (2002)). 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." Id. at 75 (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 409-10) (internal citation omitted).

The Supreme Court has instructed that "[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." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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)).

III. DISCUSSION

With the exception of ground 2, Lopez alleges various ineffective-assistance-of-counsel claims in his petition. (See ECF No. 1 at 3-29.) In Strickland, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the attorney's "representation fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of theproceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Additionally, to establish prejudice under Strickland, it is not enough for the habeas petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. 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.

When the ineffective assistance of counsel claim is based "[i]n the context of pleas[,] a defendant must show the outcome of the plea process would have been different with competent advise."...