Perez-Arellanez v. United States

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Isabel Perez-Arellanez, No. CV-16-00725-TUC-RCC 10 Petitioner, No. CR-12-01025-RCC-LAB-1 11 v. ORDER 12 United States of America, 13 Respondent. — 14 — 15 Pending before the Court is Ground One of Petitioner Isabel Perez-Arellanez’s 16 original § 2255 Habeas Petition to Vacate, Set Aside, or Correct Sentence by a Person in 17 Federal Custody. (Doc. 1.) Respondent filed a response. (Doc. 19.) Petitioner did not file 18 a reply. The Court will deny Petitioner’s § 2255 Habeas Petition. 19 Ground One asserts that Petitioner’s trial counsel was ineffective because counsel 20 did not object when the district judge allowed jurors to ask additional questions of the 21 witnesses after examination. He claims that this caused the jurors to deliberate 22 prematurely, which prejudiced him. 23 For Petitioner to assert a successful ineffective assistance of counsel claim, he 24 must show that (1) counsel’s actions fell below an objective level of reasonableness, and 25 (2) due to counsel’s actions, Petitioner suffered prejudice. Strickland v. Washington, 466 26 U.S. 668, 687-88 (1984). Prejudice occurs when “there is a reasonable probability that, 27 but for counsel’s unprofessional errors, the result of the proceeding would have been 28 different.” Id. at 695 . Review of counsel’s actions is highly deferential. Cullen v. || Pinholster, 563 U.S. 170, 190 (2011). 2 Petitioner has shown neither that counsel’s actions were subpar, nor that he 3|| suffered prejudice from counsel’s actions. A court may allow limited questioning of witnesses by jurors if such questioning is neutral and no prejudice results. United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994); see also United States v. Lynch, 903 F.3d 6 || 1061 (9th Cir. 2018). Petitioner states that the simple fact that the judge permitted questions demonstrates he was prejudiced. He has given no examples of questions asked 8 || by the jurors or why any specific question could have changed the outcome of the trial. 9|| This nondescript assertion does not allow the Court to infer either that counsel’s lack of 10 || objection was unreasonable or that Petitioner was prejudiced by it. 11 Accordingly, IT IS ORDERED: 12 1. Petitioner’s original Petition to Vacate, Set Aside, or Correct Sentence under 28 13 U.S.C. § 2255 is DENIED as to Ground One. (Doc. | in CV-16-00725-TUC-RCC; 14 Doc. 266 in CR-12-01025-RCC-LAB-1.) Grounds Two and Three of the original 15 Petition were previously denied by this Court. (See Doc. 18 in CV-16-0072516 TUC-RCC; Doc. 268 in CR-12-01025-RCC-LAB-1.) Therefore, the original 17 Petition is DISMISSED WITH PREJUDICE. The Clerk of Court shall enter 18 judgment accordingly. 19 2. Pursuant to Rule I1(a) of the Rules Governing § 2255 Cases, in the event 20 Petitioner files an appeal, the Court declines to issue a certificate of appealability 21 on all grounds for appeal in Defendant’s petition because reasonable jurists would 22 not find the Court’s procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 23 473, 484 (2000). 24 Dated this 13th day of November, 2019. a, 28 sernior United States District Judge _2-