Larin 199915 v. Shinn

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 George Benjamin Larin, No. CV-19-00545-TUC-JCH (MSA) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. — 14 — 15 George Benjamin Larin, an Arizona state prisoner, seeks habeas relief under — 16 — 28 U.S.C. § 2254 . For the following reasons, the Court will recommend that his request for 17 relief be denied. 18 Background 19 In 2012, a jury found Larin guilty of first-degree burglary, armed robbery, 20 aggravated robbery, and kidnapping. State v. Larin (Larin I), 310 P.3d 990, 993 (Ariz. Ct. 21 App. 2013 ). The Arizona Court of Appeals recited the details of his crimes as follows: On June 2, 2011, around 5:30 p.m., A.A. was at his home in Tucson — 22 — working on a vehicle in his garage when he saw three masked men in a white 23 car drive by in the alley. A.A. closed his garage door and called his neighbor to notify him of what he had seen. The neighbor’s wife eventually called the — 24 — police. 25 Meanwhile, a few houses away, J.W. was leaving his friend A.V.’s house where he had purchased heroin. J.W. left through the back door, and, 26 as soon as he got into his vehicle, a masked man later identified as Alonzo 27 Rada, who had been hiding in the back seat, pointed a gun at him. J.W. and Rada soon were joined by two other men, both of whom were wearing masks 28 and holding handguns. The two men later were identified as Anthony Torre 1 and Larin. The three men walked J.W. at gunpoint to the rear of A.V.’s house — 2 — and directed him to knock on the back door. When A.V. opened the door, 3 Larin and the others forced their way in at gunpoint. A.V.’s wife, S.B., and the children were led into one of the bedrooms where they remained for the — 4 — duration of the incident. A.V. and J.W. were told to “go into the living room 5 and sit on the couch [with their] hands on [their] heads.” A.V., who understood that he “was being robbed,” told the men where the heroin was — 6 — located. While Larin and Rada searched for the heroin, Torre held A.V. and 7 J.W. at gunpoint. After finding the heroin, Larin and Rada began collecting other items, including cash, a gun, televisions, and game consoles. The three — 8 — men then decided to leave. Torre left through the back door but returned 9 immediately after he saw police officers outside. After telling Larin and Rada about the officers, Torre left through the front door and officers immediately 10 apprehended him. Larin and Rada then got rid of their guns, took off their 11 masks, and, as they attempted to leave through the back door, were arrested. — 12 — Id. at 993–94 (alterations in original). Following a partially successful direct appeal, Larin 13 was resentenced to concurrent prison terms totaling 18 years. State v. Larin (Larin II), No. 2 CA–CR 2017–0330–PR, 2018 WL 2383684 , at *1 (Ariz. Ct. App. May 25, 2018). — 14 — 15 Larin then retained a new attorney and sought postconviction relief, raising the issue 16 of ineffective assistance of counsel. (Doc. 11-1 at 124–28.) In the petition for relief, he argued that his trial counsel was ineffective for failing to file a motion to suppress an in17 18 court identification, failing to file other pretrial motions, failing to request that the jury be 19 instructed on false imprisonment, failing to move for a judgment of acquittal, failing to object to improper questioning and statements, and failing to interview Rachel Larin — 20 — 21 (Larin’s wife) and Amanda Larin-Rada (Larin’s sister) before trial. (Id. at 131–55.) In 22 support of the last claim, Rachel, Amanda, and Alonzo Rada (codefendant to Larin and husband to Amanda) submitted affidavits, asserting that Larin was merely visiting the — 23 — 24 victims and played no part in the home invasion. (Id. at 163–64, 166–67, 169–71.) The trial 25 court rejected Larin’s claims as without merit. (Id. at 207–16.) In doing so, the court relied in part on the affidavit of Larin’s trial counsel, who opined that Larin and his family — 26 — 27 fabricated a story to absolve Larin of criminal responsibility. (Id. at 194–95.) 28 Larin then filed a motion for reconsideration, asserting that his trial counsel had 1 made numerous incorrect statements in the affidavit, and that an evidentiary hearing was 2 warranted on that issue. (Id. at 218–21.) The trial court agreed. (Doc. 11-2 at 21–22.) The 3 testimony of trial counsel, as well as numerous exhibits submitted thereafter, confirmed 4 that counsel’s affidavit contained multiple inaccuracies. (See id. at 118–20.) 5 In an amended decision, the trial court nevertheless rejected Larin’s claims. (Id. 6 at 117–25.) The court explained that it had considered trial counsel’s affidavit only as to 7 one claim (that counsel was ineffective for failing to interview Rachel and Amanda) and 8 thus adopted its previous ruling as to Larin’s other claims. (Id. at 118.) As to the claim 9 concerning Rachel and Amanda, the court assumed (but did not conclude) that Larin’s 10 counsel performed deficiently by not conducting interviews. (Id. at 123.) However, 11 considering the strength of the prosecution’s case, the court found that Larin was not 12 prejudiced. (Id. at 124–25.) 13 Larin filed a petition for review in the Arizona Court of Appeals. (Id. at 130–49.) 14 Asserting that trial counsel’s affidavit was the “principal issue” in the case, Larin argued 15 that counsel’s false statements negated the presumption of reasonable performance. (Id. 16 at 137, 143.) He also argued that his counsel performed deficiently by not interviewing 17 Rachel and Amanda before trial. (Id. at 146–48.) The Arizona Court of Appeals held that 18 even if Larin were correct that his counsel performed deficiently, his claims nevertheless 19 failed because he “ignore[d] the trial court’s conclusion” that there was no prejudice. 20 Larin II, 2018 WL 2383684 , at *2. In addition, the court observed that Larin did not 21 specifically appeal the denial of his other claims. Id. 22 Larin’s petition for review to the Arizona Supreme Court was denied. (Doc. 11-2 23 at 187.) This timely proceeding followed. 24 Legal Standard 25 This habeas action was filed after April 24, 1996, and is therefore governed by the 26 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Ochoa v. Davis, — 27 — 16 F.4th 1314, 1325 (9th Cir. 2021). Under AEDPA, state prisoners normally must exhaust 28 their claims in state court before seeking federal habeas relief. Bynoe v. Baca, 966 F.3d 1 972, 978 (9th Cir. 2020). “An unexhausted claim will be procedurally defaulted, if state 2 procedural rules would now bar the petitioner from bringing the claim in state court.” 3 Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en banc). Federal review of 4 procedurally defaulted claims “is barred unless the prisoner can demonstrate cause for the 5 default and actual prejudice as a result of the alleged violation of federal law, or 6 demonstrate that failure to consider the claims will result in a fundamental miscarriage of 7 justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). 8 In addition, AEDPA limits the authority of federal courts to grant habeas relief on 9 claims that were “adjudicated on the merits” in state court. 28 U.S.C. § 2254 (d). A federal 10 court must defer to the state court’s decision on such a claim unless the decision “was 11 contrary to, or involved an unreasonable application of, clearly established Federal law, as 12 determined by the Supreme Court of the United States,” id. § 2254(d)(1), or “was based on 13 an unreasonable determination of the facts in light of the evidence presented in the State 14 court proceeding,” id. § 2254(d)(2). “This is a ‘highly deferential standard for evaluating 15 state-court rulings.’” Demetrulias v. Davis, 14 F.4th 898, 905 (9th Cir. 2021) (quoting 16 Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). 17 Discussion 18 In his federal petition, Larin incorporates the claims he raised in his petition for 19 postconviction relief and petition for review. He alleges that his trial counsel was 20 ineffective for failing to (a) interview Rachel and Amanda, (b) file a motion to suppress an 21 in-court identification, (c) file other pretrial motions, (d) request a false imprisonment 22 instruction, (e) move for a judgment of acquittal, and (f) object to improper questioning 23 and statements. He also alleges that the state trial court erred when it did not grant his 24 petition for postconviction relief based solely on his trial counsel’s erroneous affidavit. 25 This final claim is not cognizable on federal habeas review because (as far as the Court can 26 tell) it does not involve a question of federal law. 28 U.S.C. § 2254 (a) (authorizing habeas 27 relief for state prisoners who are in custody in violation of federal law). The Court will 28 recommend that it be denied on that basis. 1 I. Claims (b), (c), (d), (e), and (f) are procedurally defaulted without excuse. 2 To exhaust his claims, Larin was required to “fairly present” them to the trial court 3 and to the Arizona Court of Appeals. Kyzar v. Ryan, 780 F.3d 940 , 946–47 (9th Cir. 2015) 4 (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (per curiam)). To “fairly 5 present” his claims, he was required to “describe in the state proceedings both the operative 6 facts and the federal legal theory on which [each] claim [was] based so that the state courts 7 ha[d] a fair opportunity to apply controlling legal principles to the facts bearing upon his 8 constitutional claim[s].” Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) (quoting 9 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008)). 10 Here, Larin fairly presented all six ineffective-assistance claims to the trial court. In 11 his petition for postconviction relief, he cited the Sixth Amendment and described the 12 specific facts underlying each of his claims (e.g., his counsel failed to request a false 13 imprisonment instruction). (Doc. 11-1 at 144–55.) However, Larin did not do the same in 14 his petition for review to the Arizona Court of Appeals. That petition includes reference to 15 the Sixth Amendment, but it does not contain a description of “the operative facts” 16 underlying five of Larin’s claims. The only mention of claims (b), (c), (d), (e), and (f) is a 17 vague statement by Larin that he presented the trial court with “seven issues alleged to have 18 constituted ineffective assistance of counsel.”1 (Doc. 11-2 at 135.) This was not sufficiently 19 specific to alert the Arizona Court of Appeals to the factual bases for his claims. 20 Consequently, the claims are unexhausted. See Wood v. Ryan, 693 F.3d 1104, 1117 (9th 21 Cir. 2012) (holding that the petitioner’s claims were unexhausted because his state-court 22 briefing described the law but not the facts). 23 As previously explained, “[a]n unexhausted claim will be procedurally defaulted, if 24 state procedural rules would now bar the petitioner from bringing the claim in state court.” 25 Dickens, 740 F.3d at 1317 . There are at least two state procedural rules barring Larin from 26 returning to state court. Claims like Larin’s must be filed “within 30 days after the issuance 27 of the mandate in the direct appeal.” Ariz. R. Crim. P. 32.1(a), 32.4(b)(3)(A). The mandate — 28 — 1 As the Court reads it, the petition for postconviction relief includes only six claims. 1 in Larin’s direct appeal issued in late 2018, so any notice requesting postconviction relief 2 would be far outside the filing period. (Doc. 11-2 at 187.) In addition, defendants are 3 precluded from raising claims in postconviction proceedings that were “waived . . . in any 4 previous post-conviction proceeding.” Ariz. R. Crim. P. 32.2(a)(3). Larin waived his 5 claims during his postconviction proceeding by not appealing them to the Arizona Court 6 of Appeals. Larin II, 2018 WL 2383684 , at *2; see State v. Bolton, 896 P.2d 830, 838 (Ariz. 7 1995) (stating that “[f]ailure to argue a claim on appeal constitutes waiver of that claim” 8 (citing State v. Carver, 771 P.2d 1382, 1390 (Ariz. 1989))). Because a return to state court 9 would be futile, Larin’s claims are procedurally defaulted. 10 Federal courts may not review procedurally defaulted claims “unless the prisoner 11 can demonstrate cause for the default and actual prejudice as a result of the alleged 12 violation of federal law, or demonstrate that failure to consider the claims will result in a 13 fundamental miscarriage of justice.” Coleman, 501 U.S. at 750 . Larin makes no attempt to 14 argue that he can show cause and prejudice.2 Larin also does not argue that he can satisfy 15 the fundamental-miscarriage-of-justice exception, which requires him to prove that “in 16 light of all the evidence, it is more likely than not that no reasonable juror would have 17 convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation 18 marks omitted) (quoting Schlup v. Delo, 513 U.S. 298 , 327–28 (1995)). To the extent that 19 Larin’s mere-presence defense is bolstered by Rachel’s and Amanda’s testimony, Larin 20 still fails to meet this exception; he concedes that, notwithstanding their testimony, at least 21 some reasonable jurors would still vote to convict him. (Doc. 21 at 6.) 22 Claims (b), (c), (d), (e), and (f) are procedurally defaulted without excuse. The Court 23 will recommend that they be denied. 24 . . . . 25 . . . . 26 2 Larin potentially has grounds for arguing cause and prejudice based on his postconviction counsel’s failure to properly present his claims to the Arizona Court of 27 Appeals. See Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default 28 of a claim of ineffective assistance at trial.”) This issue need not be addressed because, as discussed in a subsequent section, Larin’s claims fail under de novo review. 1 II. Claim (a) does not overcome AEDPA deference. 2 Larin contends that his trial counsel was ineffective for failing to interview Rachel 3 and Amanda before trial, because they had information that was favorable to his mere4 presence defense. The Arizona Court of Appeals rejected this claim based on the trial 5 court’s finding that there was no prejudice, which Larin failed to challenge on appeal. Larin 6 II, 2018 WL 2383684 , at *2. This decision was not objectively unreasonable. 28 U.S.C. 7 § 2254(d). 8 To establish prejudice, “[t]he defendant must show that there is a reasonable 9 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 10 have been different. A reasonable probability is a probability sufficient to undermine 11 confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Here, the 12 evidence convincingly showed that Larin was guilty. The victims’ neighbor testified that 13 he saw a white car carrying three masked passengers just before the crime occurred; the 14 car belonged to Larin’s sister; and Larin’s cellphone was found in the center console of the 15 car. Larin I, 310 P.3d at 993, 998 ; (Doc. 11-1 at 132, 136–37; Doc. 11-2 at 124). Two 16 victims, who were present in the house, testified that three masked men committed the 17 home invasion. Larin I, 310 P.3d at 993–94; (Doc. 11-1 at 134–35). Finally, Larin was 18 arrested attempting to leave through the backdoor with Alonzo Rada, and he was wearing 19 clothing—including a “sleeve/mask around his neck”—identified by the victims as 20 belonging to one of the intruders. Larin I, 310 P.3d at 994 ; (Doc. 11-1 at 209). 21 The evidence exculpating Larin is far less persuasive. Rachel’s and Amanda’s 22 affidavits provide an explanation for Larin’s presence in the house. (Doc. 11-1 at 163–64, 23 166–67.) Alonzo’s affidavit and Anthony’s trial testimony corroborate Larin’s mere24 presence defense. (Id. at 139, 169–71.)3 According to this evidence, Rachel drove her 25 3 Alonzo invoked his Fifth Amendment rights before Larin’s trial and thus did not testify. (Doc. 11-2 at 13.) It was not until after Alonzo completed his sentence that he 26 corroborated Larin’s version of the events. Anthony initially testified at trial that Larin did not participate in the home invasion, but he refused to confirm his testimony or answer any 27 more questions. (Doc. 11-1 at 139.) The record shows that Anthony called his mother before Larin’s trial and expressed concern about being charged with perjury for lying on 28 Larin’s behalf, as “the victims [were not] going to agree” with Anthony’s story. (Id. at 140; Doc. 11-2 at 121.) 1 vehicle to pick up Amanda and Larin, and Larin asked Rachel to be dropped off at the 2 victims’ house. Alonzo was present and heard Larin’s request. After Rachel, Amanda, and 3 Larin left, Alonzo took Amanda’s vehicle (the white car), picked up Anthony, and drove 4 to the victims’ house. Alonzo and Anthony then forcibly entered at gunpoint, and they 5 observed Larin sitting on the living room couch. Alonzo pointed his gun at Larin and asked 6 for help finding the drugs, but Larin did not recognize him. 7 This evidence does not establish any prejudice. The evidence presented at trial 8 overwhelmingly showed that Larin was an intruder, not a mere guest. Noticeably absent 9 from Larin’s version of the events is an explanation for why the victims did not testify (or 10 inform the police long before trial) that Larin was present before the intrusion and himself 11 a victim, or for why he was caught leaving with one of the other intruders. Furthermore, 12 Larin’s evidence is highly suspect: The testimony was given by individuals who had reason 13 to provide false testimony on his behalf (and one was recorded expressing concern about 14 doing so), and the substance of the testimony is questionable at best (e.g., it is doubtful that 15 Larin would not recognize his brother-in-law’s voice asking for help). 16 It is not reasonably probable that a jury would have rejected the testimony of the 17 victims and a disinterested neighbor in favor of the implausible testimony of Larin’s 18 family. Therefore, the Arizona Court of Appeals could reasonably conclude that Larin 19 failed to establish prejudice. 20 III. All claims fail under de novo review. 21 Although Larin is not entitled to de novo review, the Court has nevertheless 22 determined that his claims fail under that more favorable standard. To prove ineffective 23 assistance of counsel, Larin must demonstrate both deficient performance and prejudice. 24 Strickland, 466 U.S. at 687 . To establish deficient performance, Larin must overcome “a 25 strong presumption that counsel’s conduct falls within the wide range of reasonable 26 professional assistance.” Id. at 689 . As stated above, to establish prejudice, Larin “must 27 show that there is a reasonable probability that, but for counsel’s unprofessional errors, the 28 result of the proceeding would have been different.” Id. at 694 . 1 Claim (a): Larin contends that his counsel was ineffective for failing to interview 2 Rachel and Amanda before trial, because they had information supporting his mere3 presence defense. Counsel testified that neither Larin nor his family mentioned that Rachel 4 and Amanda had information that could be helpful to Larin’s defense. (Doc. 11-2 at 119.) 5 However, counsel’s case file contained a note that included Rachel’s phone number and 6 the following remark: “Re: Alibi / Dropping him off @ house. Was gonna p/u later.” (Id. 7 at 120.) This note supports Larin’s assertion that counsel failed to follow up on a material 8 issue. As such, the Court finds that counsel performed deficiently. The effect of this error 9 will be considered together with any other errors that counsel may have made. See Williams 10 v. Filson, 908 F.3d 546, 570 (9th Cir. 2018) (recognizing that “the cumulative effect of 11 multiple errors may prejudice a defendant even if no single error in isolation is sufficient 12 to establish prejudice”). 13 Claim (b): Larin contends that his counsel was ineffective for failing to file a pretrial 14 motion to suppress an in-court identification. Before trial, the prosecutor learned that one 15 of the victims might identify Larin in court, but the prosecutor did not disclose that 16 information to Larin’s counsel. Larin I, 310 P.3d at 997–98. During direct examination, 17 Larin’s counsel objected when the victim stated that he could identify one of the intruders. 18 Id. at 997. During a bench conference, counsel explained that he received no notice of the 19 testimony, and he moved for a mistrial because there was “no way . . . to unring that bell.” 20 Id. The trial court denied the motion but sustained the objection, directing the jury to 21 disregard the question and answer. Id. 22 At the conclusion of the victim’s testimony, three jurors requested that the victim 23 be asked if he could identify Larin. Id. Larin’s counsel renewed his motion for a mistrial, 24 arguing that the jury clearly believed that the victim could identify Larin as one of the 25 intruders. Id. That motion was also denied. Id. On the third day of trial, Larin’s counsel 26 filed a written motion, requesting that the trial court either grant a mistrial or strike the 27 victim’s testimony. Id. That motion was also denied. Id. at 998. 28 Larin fails to demonstrate that his counsel performed deficiently. Despite an 1 obligation to disclose material information, the prosecutor did not notify Larin’s counsel 2 that the victim might make an identification. Id. Nevertheless, counsel promptly objected 3 and prevented an identification from being made. In addition, he argued vigorously for a 4 mistrial and renewed his argument when it appeared that the jury could not disregard the 5 testimony. Under the circumstances, this was reasonable performance. 6 Larin argues that his counsel was deficient for not asking the prosecutor before trial 7 whether the victims could make an identification. However, he provides no reason why 8 counsel should have questioned the completeness of the prosecution’s disclosure, or why 9 counsel should have made that inquiry in particular. See Strickland, 466 U.S. at 689 (stating 10 that counsel’s performance must be assessed without the benefit of hindsight). 11 Furthermore, he does not explain why a motion to suppress would have been successful. 12 Under Arizona law, in-court identifications are generally admissible. See State v. Goudeau, — 13 — 372 P.3d 945 , 980–81 (Ariz. 2016). Therefore, Larin has established neither deficient 14 performance nor prejudice. See Styers v. Schriro, 547 F.3d 1026 , 1030 n.5 (9th Cir. 2008) 15 (per curiam) (stating that “a defendant claiming ineffective assistance of counsel for failure 16 to file a particular motion must . . . demonstrate a likelihood of prevailing on the motion”). 17 Claim (c): Larin contends that his counsel was ineffective for failing to file other 18 pretrial motions. However, he fails to specify what meritorious motions his counsel should 19 have filed. Consequently, he has established neither deficient performance nor prejudice. 20 See id. 21 Claim (d): Larin contends that his counsel was ineffective for failing to request that 22 the jury be instructed on false imprisonment, the lesser-included offense to kidnapping. 23 Under Arizona law, a defendant is guilty of false imprisonment if he “knowingly restrain[s] 24 another person.” Ariz. Rev. Stat. § 13-1303 (A). A defendant can be guilty of kidnapping if 25 he “knowingly restrain[s] another person with the intent to . . . otherwise aid in the 26 commission of a felony.” Id. § 13-1304(A)(3). Here, the evidence showed that Larin and 27 his codefendants held the victims at gunpoint (a knowing restraint) so that they could take 28 items from the victims’ house (with intent to commit robbery and burglary). As their 1 conduct clearly exceeded a mere knowing restraint, counsel could have reasonably 2 determined that it would be futile to request a false imprisonment instruction. See Larin I, — 3 — 310 P.3d at 997 (concluding that the evidence did not support giving a false imprisonment 4 instruction). Counsel cannot be found ineffective for failing to raise a meritless argument. 5 Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). 6 Claim (e): Larin contends that his counsel was ineffective for failing to move for a 7 judgment of acquittal on the kidnapping charge. Given the evidence described in this 8 report, however, the jury could reasonably conclude that Larin was guilty of kidnapping. 9 As such, “[a] motion for judgment of acquittal . . . would have been denied, and it was 10 neither unreasonable nor prejudicial for counsel not to make such a fruitless motion.” 11 United States v. Brackenridge, 590 F.2d 810, 811 (9th Cir. 1979) (per curiam) (citing 12 Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc)). 13 Claim (f): Larin contends that his counsel was ineffective for failing to object to 14 certain statements made by the prosecutor. He faults counsel for not objecting when, during 15 opening statement, the prosecutor stated that the jury would hear evidence that Larin, 16 Alonzo, and Anthony were the perpetrators. Larin does not explain why this was 17 objectionable, nor is any ground for objection apparent to the Court. The very purpose of 18 an opening statement “is to state what evidence will be presented,” and the prosecutor 19 indeed presented evidence indicating that Larin was guilty. United States v. Dinitz, 424 20 U.S. 600 , 612 (1976) (Burger, C.J., concurring). 21 Larin also faults counsel for not objecting to the prosecutor’s leading questions. 22 However, he does not argue that the answers would have been inadmissible if elicited 23 through non-leading questions. Counsel could have reasonably refrained from objecting to 24 such questions to avoid delay. Alternatively, counsel may have wanted to avoid drawing 25 attention to any improper questions and answers. As such, Larin has not overcome the 26 presumption that counsel’s failure to object was “within the wide range of reasonable 27 professional assistance.” Strickland, 466 U.S. at 689 . 28 Finally, Larin faults counsel for not objecting to statements made by the prosecutor 1 during closing argument. “Because many lawyers refrain from objecting during opening 2 statement and closing argument, absent egregious misstatements, the failure to object 3 during closing argument and opening statement is within the ‘wide range’ of permissible 4 professional legal conduct.” United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 5 1993) (quoting Strickland, 466 U.S. at 689 ). Larin passingly accuses the prosecutor of 6 misstating a victim’s testimony, but he does not argue that the prosecutor’s misstatement 7 was so “egregious” that counsel was required to object. He also accuses the prosecutor of 8 erroneously stating that DNA on one of the masks “match[ed]” Larin’s DNA, when the 9 testimony was that the DNA could belong to any male in Larin’s family. Larin fails to 10 mention, however, that his counsel objected to the prosecutor’s statement. (Doc. 11-1 11 at 212–13.) Furthermore, during closing argument, counsel reminded the jury of Larin’s 12 relation to Anthony (they are cousins) and of testimony that 1,100 people in the county 13 might have the same DNA. (Id. at 213.) This was not deficient performance. 14 Prejudice: Of the six alleged instances of deficient performance, five are without 15 merit. The effect of counsel’s conduct with respect to those instances cannot be considered 16 in the prejudice analysis. Staten v. Davis, 962 F.3d 487, 499 (9th Cir. 2020) (stating that 17 courts “cannot consider the cumulative effect of non-errors” (citing Williams, 908 F.3d 18 at 570 )). This leaves only counsel’s failure to interview Rachel and Amanda before trial. 19 As discussed in the previous section, the evidence of Larin’s guilt was 20 overwhelming. Multiple witnesses, including the victims, saw three intruders; Larin was 21 wearing clothing belonging to one of the intruders (including a mask around his neck); 22 Larin was arrested leaving with one of the other intruders; and the car driven by the 23 intruders contained Larin’s cellphone. Larin’s evidence that he was merely present is not 24 persuasive and does not create a reasonable probability of a more favorable outcome. Larin 25 therefore fails to demonstrate prejudice. 26 * * * 27 IT IS RECOMMENDED that Petitioner George Benjamin Larin’s petition for a 28 writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) be denied. 1 This recommendation is not immediately appealable to the United States Court of || Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service || of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636 (b)(1); Fed. R. || Civ. P. 72(b)(2). No replies may be filed absent prior authorization by the district court. || Failure to file timely objections may result in the acceptance of this recommendation by 7\|| the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114 , || 1121 (9th Cir. 2003) (en banc). 9 The Clerk of Court is directed to terminate the referral of this matter. Filed 10 |} objections should bear the following case number: CV-19-00545-TUC-JCH. 11 Dated this 11th day of February, 2022. 12 S . 4 United States Magistrate Judge — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -13-