Contreras v. Backer

[5] 6 UNITED STATES DISTRICT COURT [7] DISTRICT OF NEVADA [8] * * * 9 GUSTAVO CONTRERAS, Case No. 3:14-cv-00435-LRH-WGC 10 Plaintiff, ORDER [11] v. [12] RENEE BAKER, [13] Defendant. [15] 16 Before the court for a decision on the merits is a petition for a writ of habeas 17 corpus filed by Gustavo Contreras. ECF Nos. 3/36. For reasons that follow, the petition 18 will be denied. 19 I. BACKGROUND1 20 On May 20, 2011, after a jury trial in the state district court for Clark County, 21 Nevada, Contreras was convicted of battery by a prisoner and sentenced under the 22 small habitual criminal statute to 60 to 150 months in the Nevada Department of 23 Corrections (NDOC). The State presented evidence at trial that, on September 19, 24 2010, Contreras, at the time an inmate at Clark County Detention Center (CCDC), 25 “sucker punched” another inmate, Christian Contreras,2 then sliced his head with a knife [26] 1 Most of the information in this section is derived from the state court record located at ECF Nos. 11-14, [27] 38, and 47. 1 or blade. The State also presented evidence that a third inmate, Matthew Romero, 2 intervened in an effort to stop the altercation. 3 On September 12, 2012, the Nevada Supreme Court affirmed Contreras’s 4 conviction and sentence. On April 12, 2013, Contreras filed a state post-conviction 5 petition for a writ of habeas corpus. That petition was denied on June 26, 2013. 6 Contreras appealed. The Nevada Supreme Court affirmed. 7 Contreras initiated this proceeding by mailing his federal habeas petition on 8 August 5, 2014. His petition contains ten separate grounds for habeas relief, all alleging 9 ineffective assistance of counsel in his state criminal proceeding. On October 29, 2015, 10 this court granted Contreras’s request to stay these proceeding to allow him to exhaust 11 state court remedies with respect to three claims – Grounds 8, 9, and 10. 12 Representing that he had concluded state court proceedings, Contreras filed, on 13 April 3, 2017, a motion to reopen federal habeas proceedings. This court granted the 14 motion. Thereafter, respondents filed a motion to dismiss certain claims in Contreras’s 15 petition, arguing that they are procedurally defaulted. In addition, Contreras filed a 16 motion for leave to file a supplement to his petition. In ruling on those motions, the court 17 dismissed Grounds 6 and 7 at petitioner’s request, dismissed Grounds 8, 9, and 10 as 18 procedurally defaulted, and permitted petitioner to supplement Grounds 1 and 2. 19 Grounds 1 through 5 are now before the court for a decision on the merits. 20 II. STANDARDS OF REVIEW 21 This action is governed by the Antiterrorism and Effective Death Penalty Act 22 (AEDPA), which imposes the following standard of review: 23 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 24 respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – [25] (1) resulted in a decision that was contrary to, or involved an 26 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [27] (2) resulted in a decision that was based on an unreasonable 1 determination of the facts in light of the evidence presented in the State court proceeding. [3] 28 U.S.C. § 2254 (d). 4 A decision of a state court is "contrary to" clearly established federal law if the 5 state court arrives at a conclusion opposite that reached by the Supreme Court on a 6 question of law or if the state court decides a case differently than the Supreme Court 7 has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362 , 4058 06 (2000). An "unreasonable application" occurs when "a state-court decision 9 unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." [10] Id. at 409 . "[A] federal habeas court may not "issue the writ simply because that court 11 concludes in its independent judgment that the relevant state-court decision applied 12 clearly established federal law erroneously or incorrectly." Id. at 411 . 13 The Supreme Court has explained that "[a] federal court's collateral review of a 14 state-court decision must be consistent with the respect due state courts in our federal 15 system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 16 'highly deferential standard for evaluating state-court rulings,' and 'demands that state17 court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766 , 773 18 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, [19] 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks 20 merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on 21 the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86 , 101 22 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 23 has emphasized "that even a strong case for relief does not mean the state court's 24 contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63 , 75 25 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA 26 standard as "a difficult to meet and highly deferential standard for evaluating state-court 27 rulings, which demands that state-court decisions be given the benefit of the doubt") 1 "[A] federal court may not second-guess a state court's fact-finding process 2 unless, after review of the state-court record, it determines that the state court was not 3 merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th 4 Cir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984 , 999–1000 5 (9th Cir. 2014); see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the 6 merits in a state court and based on a factual determination will not be overturned on 7 factual grounds unless objectively unreasonable in light of the evidence presented in the 8 state-court proceeding, § 2254(d)(2)."). 9 Because de novo review is more favorable to the petitioner, federal courts can 10 deny writs of habeas corpus under § 2254 by engaging in de novo review rather than 11 applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370 , 390 12 (2010). 13 III. DISCUSSION 14 All the remaining claims in Contreras’s petition are premised on allegations that 15 he was deprived of his constitutional right to effective assistance of counsel. To 16 demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth 17 Amendments, a convicted defendant must show 1) that counsel's representation fell 18 below an objective standard of reasonableness under prevailing professional norms in 19 light of all the circumstances of the particular case; and 2) that it is reasonably probable 20 that, but for counsel's errors or omissions, the result of the proceeding would have been 21 different. Strickland v. Washington, 466 U.S. 668 , 687–94 (1984). 22 Ground One 23 In Ground One, Contreras alleges he was deprived of effective assistance of 24 counsel because his trial counsel, Carl E. Arnold, failed to conduct an adequate 25 investigation. According to Contreras, there were several witnesses who saw the entire 26 altercation between him and Christian C. and would have testified that Contreras acted 27 in self-defense. The evidence proffered to support this ground consists of three 1 declarations from inmates who claim to have witnessed at least a portion of the fight – 2 Steven D. Sutton, George Steele, and Jason Scott Spencer. ECF No. 36, p. 5. 3 The state district ruled as follows in addressing Contreras’s claim that counsel’s 4 investigation was inadequate: 5 In this case, Defendant Contreras provided the affidavits of two persons, Steven D. Sutton and George Steele, who claim to have 6 witnessed the altercation in question, however, neither exculpate him. Mr. Sutton attests he witnessed two “Southern Gang” members attacking his 7 neighbor, who, interestingly enough, he did not know was Mr. Contreras at the time. Whether such a statement is true, such does not exonerate 8 Defendant from using a sharp object to slice the head of Christian Contreras, who, from all accounts, is not a gang member. Mr. Steele 9 claims he witnessed Hispanics “jumping Inmate Gustavo Contreras Estrada.” He also notes Defendant “did nothen (sic) wrong he was just 10 doing his time I’ve talked with him he’s a cool person. . . . ” Again, such statements do not exculpate Defendant. In light of the testimony of both 11 corrections officers and inmates presented at trial, it is difficult to perceive how further investigation of these witnesses would have altered the 12 outcome of the case. 13 Defendant also proposes…his attorney “failed to attempt to locate” any favorable witnesses among the 98 inmates “filter[ing] through during 14 the fight.” Such allegations, at best, are bare, and demonstrate a speculation Mr. Arnold might have found favorable witnesses if he had 15 interviewed the 98 inmates. Succinctly put; Defendant Contreras fail [sic] to show evidence any of these inmates would have provided favorable 16 testimony or there was a reasonable probability such would have changed the case’s outcome. [17] 18 ECF No. 14 at 10–11 (emphasis in original). 19 Citing Strickland, the Nevada Supreme Court addressed the claim in the 20 following manner: 21 [A]ppellant claimed that his trial counsel was ineffective for failing to investigate witnesses. In support of this claim, appellant included affidavits 22 from two fellow inmates who asserted that they witnessed the altercation. Appellant failed to demonstrate that his trial counsel’s performance was 23 deficient. Appellant did not claim that counsel knew of these two potential witnesses prior to trial, but rather merely asserted that counsel could have 24 interviewed the numerous inmates who potentially could have witnessed the incident. Under the circumstance of this case, appellant failed to 25 demonstrate that such an exhaustive interviewing process that was without further guidance from appellant regarding specific potential 26 witnesses would have been undertaken by objectively reasonably diligent counsel. See Strickland, 466 U.S. at 691 (stating “a particular decision not 27 to investigate must be directly assessed for reasonableness in all the Appellant also failed to demonstrate that he was prejudiced by the 1 failure to discover these potential witnesses as their purported testimony was similar to the testimony already presented to the jury in appellant’s 2 defense, that appellant did not initiate the attack on the victim. The jury already rejected this defense at trial. Appellant failed to demonstrate a 3 reasonable probability of a different outcome at trial had further testimony of a similar nature been discovered by counsel and presented at trial, 4 particularly in light of the detention center employees’ testimony that appellant attempted to distance himself from the injured party and blend in 5 with the rest of the inmates when the employees arrived upon the incident scene. Therefore, the district court did not err in denying this claim. [6] 7 ECF No. 14-8 at 3–4. 8 This court questions the Nevada Supreme Court’s conclusion that counsel did 9 not have an obligation to investigate possible eyewitnesses to the altercation absent 10 some guidance from his client. A defense attorney has a general duty to make 11 reasonable investigations or to make a reasonable decision that makes particular 12 investigations unnecessary. See Strickland, 466 U.S. at 691 . 13 In addition, this court also disagrees with the state supreme court’s reasoning as 14 to lack of prejudice – in particular, its disregard for the impact additional corroborating 15 testimony might have had in showing that Contreras was not the initial aggressor. “[T]he 16 testimony already presented to the jury in appellant’s defense” to which the Nevada 17 Supreme Court referred consisted of testimony from two witnesses (Romero and 18 Contreras) that the jury had ample reason to doubt. Romero’s testimony that Christian 19 C. was the initial aggressor (ECF No. 47; p. 21, 23, 39, 58) and that Contreras did not 20 have a blade or knife (Id.; p. 28, 49, 91) was contrary to his statements to corrections 21 officers immediately after the fight (Id.; p. 106, 125). And Contreras had an obvious self22 interest in claiming that he was not the initial aggressor. Given the dubious nature of this 23 testimony, the Nevada Supreme Court was not justified in dismissing proffered 24 corroborating testimony from other sources on the ground that it was duplicative or 25 cumulative. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) (attorney’s 26 failure to pursue corroborating evidence in support of defense may amount to 27 constitutionally deficient performance). 1 Even reviewed de novo, however, the claim lacks merit because the proffered 2 declarations fail to establish a reasonable probability that the testimony of the 3 declarants would have caused the jury to return a more favorable verdict. 4 With respect to the declarations from Sutton and Steele, neither describes with 5 any specificity how the fight began nor, for that matter, indicates that the declarant even 6 saw how it began. The relevant portion of Sutton’s brief declaration states as follows: 7 While an altercation was taken [sic] place in 7-B North Tower I witnessed two (2) Southerner Gang members attacking my neighbor who I 8 didn’t know at the time, because of my personal reasons. 9 ECF No. 13-23, p. 38 (emphasis added). 10 In his declaration, Steele stated: 11 I was in 7B cell 1 It was breakfast time I witness [two] Hispanics jumping inmate Gustavo Contreras Estrada # 10606517 from what I could 12 see there [were] really trying to hurt him I think it was because the 2 Hispanics [were] gang member[s] from the south side gang [13] 14 Id., p. 40 (missing punctuation in original). 15 Spencer’s description of the fight in his declaration is moderately more detailed 16 but is suspect in that it was composed three years after the event and, in at least one 17 significant respect, differs from the account provided by Contreras and Romero at trial. 18 Contreras testified that the altercation began with Christian C. taking a swing at 19 him, in response to which, he threw a single punch that knocked Christian C. back off 20 his feet. ECF No. 47; p. 207-09, 213; ECF No. 11-21, p. 25-27. At that point, Romero 21 shoved Contreras into a corner and started taking swings at him. Id. Then Romero 22 pinned Contreras against a wall while Christian C., who had regained his footing, began 23 hitting Contreras until corrections officers broke up the fight. Id. Contreras further 24 testified that he did not get another shot at hitting Christian C. after the initial blow. ECF 25 No. 11-12, p. 27. Though he claimed he was attempting to break up the fight rather than 26 participate in it, Romero gave a somewhat consistent account in his testimony and, 27 notably, did not mention Contreras striking Christian C. at any point after the initial blow 1 In his declaration, Spencer stated that when he emerged from his cell on the 2 morning of September 19, 2010, he observed Christian C. and Matthew Romero 3 attacking petitioner Contreras. ECF No. 18, p. 6. Contrary to Contreras and Romero’s 4 accounts, Spencer’s declaration states that Contreras’s punch knocking Christian C. to 5 the floor came after Contreras fended off being attacked by both Christian C. and 6 Romero. And, like the other two declarations, Spencer’s declaration is also ambiguous 7 as to whether he saw how the fight began. 8 In summary, the declarations Contreras relies upon to show prejudice do not 9 demonstrate that the declarants, if called to testify at trial, “would have altered 10 significantly the evidentiary posture of the case.” See Rios v. Rocha, 299 F.3d 796 , 813 11 (9th Cir. 2002) (quoting Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998)). Thus, he 12 has not established that their testimony would create a reasonable probability that the 13 jury would have entertained a reasonable doubt concerning guilt. 14 Ground One is denied. 15 Ground Two 16 In Ground Two, Contreras alleges he was deprived of effective assistance of 17 counsel because counsel failed to prevent the State from using perjured testimony to 18 obtain his conviction. The testimony Contreras claims was false consisted of testimony 19 that Christian C. was not affiliated with the Sureno gang and that he (Contreras) was the 20 initial aggressor. With respect to the former, Contreras alleges the prosecution knew 21 that Christian C. was affiliated with the Surenos because another inmate, Alexander 22 Perez, had told a police detective, Gabriel Munoz, that the fight involving Christian C. 23 and Contreras “was just a little problem with us” and that “us” referred to the Sureno 24 gang. ECF No. 13-2, p. 59. 25 This claim lacks merit. Defense counsel elicited testimony from Romero that he 26 believed Christian C. was a gang member. ECF No. 47, p. 35. Then, when Christian C. 27 testified, counsel effectively cross-examined him on this point. Id., p. 76-79. Counsel 1 above-noted statements by Alexander Perez and Christian C.’s possible gang affiliation. 2 Id., p. 154-179. 3 In his closing argument, defense counsel asserted: 4 What I’ve been saying all along, [Christian C.] went to attack Gustavo Contreras. That was the guy that was trying to get his stripes. 5 Why do you think the shot caller was down there running back and forth beforehand? It was Christian Contreras who was trying to make his 6 stripes. He didn’t want to be the pusher paper [sic] anymore, you know, collecting the paper, seeing who was charged with what, which Hispanic 7 was part of the Nortenos or the Surenos or the . . . Border Brothers, you know. He wanted to move up in ranks and so he went and he did this hit 8 against my client. 9 ECF No. 11-21, p. 40-41. 10 Contreras does not specify what additional steps defense counsel could have 11 taken to refute evidence that Christian C. was not affiliated with a gang. He fails to show 12 that effective counsel could have done more to show that Christian C. or any other 13 witness committed perjury. Accordingly, he has not established the counsel’s 14 performance fell below an objective standard of reasonableness in this regard. 15 As for the remaining portion of Ground Two, the Nevada Supreme Court held: 16 Appellant also claimed that counsel should have asserted that the State’s witnesses who testified that appellant was the initial aggressor 17 committed perjury. Appellant failed to demonstrate that his counsel’s performance was deficient or that he was prejudiced. Counsel cross18 examined the officer and the State’s witnesses regarding their version of events and appellant failed to demonstrate objectively reasonable counsel 19 would have argued that their testimony amounted to perjury. Appellant failed to demonstrate a reasonable probability of a different outcome at 20 trial had counsel argued the State’s witnesses committed perjury. 21 ECF No. 14-8, p. 5. 22 Reviewed under § 2254(d), the state court’s adjudication of the claim did not 23 “result[] in a decision that was contrary to, or involve[] an unreasonable application of, 24 clearly established Federal law, as determined by the Supreme Court of the United 25 States,” nor did it “result[] in a decision that was based on an unreasonable 26 determination of the facts in light of the evidence presented in the State court 27 proceeding.” 1 The Nevada Supreme Court applied the correct federal law standard – i.e., 2 Strickland. ECF No. 14-8, p. 2-3. The record demonstrates that counsel made 3 reasonable efforts to refute testimony that Contreras was the initial aggressor. He 4 elicited testimony from Romero that a corrections officer attempted to get him (Romero) 5 to say that Contreras was the aggressor, but Romero told him it was “the guy who was 6 cut” – i.e., Christian C. ECF No. 47, p. 58. Then he effectively cross-examined Christian 7 C.’s testimony that it was Contreras who hit him. Id., p. 86-87. Contreras testified in his 8 defense that the fight started with Christian C. taking a swing at him. Id., p. 207. In his 9 closing statement, counsel made a cogent argument that Christian C. was the 10 aggressor. ECF No. 11-21, p. 40-41. 11 The Nevada Supreme Court’s decision that Contreras failed to meet either prong 12 of the Strickland standard was reasonable. At a minimum, fairminded jurists could 13 disagree on the correctness of the decision. Thus, Ground Two must be denied. 14 Ground Three 15 In Ground Three, Contreras alleges he was deprived of effective assistance of 16 counsel because counsel failed to effectively litigate the State’s failure to produce or 17 preserve security video evidence. According to Contreras, effective counsel would have 18 argued that the State’s destruction of security video evidence “violated protocol at Clark 19 County Detention Center” and Contreras’s “right to a fair trial under the U.S. 20 Constitution.” ECF No. 3, p. 7. 21 At trial, defense counsel cross-examined Alan Hirjack, a corrections officer, about 22 the existence of security cameras in the module where the altercation took place. ECF 23 No. 47, p. 117. Hirjack testified that there were cameras running in the module and that 24 the specific area in question “should have been in maybe one the cameras [sic] view.” 25 Id. He also testified, however, that he “did not get to review videotapes at all.” Id. 26 Patrick Wahlquist, a corrections sergeant, testified that he and other staff viewed 27 the video and that “due to the camera angle” they “couldn’t see anything.” Id., p. 125-26. 1 On cross-examination, Wahlquist testified that he did not know where the video 2 recording was located, but that he “may have a copy of it.” Id., p. 128. 3 At the conclusion of Wahlquist’s testimony and outside the presence of the jury, 4 defense counsel asked that his testimony be excluded or that counsel be allowed to 5 review the video before Wahlquist be excused as a witness. Id., p. 134. Then, the 6 following exchange occurred: 7 [PROSECUTOR]: . . . Judge, I may have misspoken to Mr. Arnold. Mr. Amold and I have so many cases together, but I just spoke with 8 Sergeant Wahlquist. He's going to come back up and he's going to testify to the following: He did not make a CD of this, they no longer have the 9 video. Once he viewed it and saw there was nothing on it, they had no other preservation of it. So there is no video that exists. As such, there is 10 nothing for the State to turn over. 11 MR. ARNOLD: Oh, I just wanted to make sure that further representation was made by the State that we did ask for a video or ask if 12 one existed, that it be turned over in this case. 13 [PROSECUTOR]: ln this case, and little fuzzy, it's coming back, in this case we just do not have it. But, yes, Mr. Arnold did ask me for it. [14] THE COURT: Okay. But after it had been destroyed or after – [15] [PROSECUTOR]: Yes, Your Honor. [16] MR. ARNOLD: So we were always under the impression until this 17 testimony that the video didn't exist. But now with these representations I would ask that Mr. Wahlquist come on the stand, make those statements, 18 and so we'd have a record in regards to that, Your Honor. 19 THE COURT: Because I think the jury's going to wonder about the video. [20] [PROSECUTOR]: Well, and that's why he testified as to what he 21 watched on but – 22 THE COURT: Okay. 23 [PROSECUTOR]: - but that's completely fine with us. And we'll have him come in, and that's all we're going to ask him, nothing new. [24] 25 Id., p. 134-35. 26 When Wahlquist was recalled as a witness, he testified in the presence of the 27 jury that he viewed the video and did not see anything relevant on it. Id., p. 140. 1 that he reviewed five minutes of the video before and after the fight, but that the fight 2 was not within the view of the camera. Id., p. 140-42. 3 In his closing argument, Arnold mentioned the State’s failure to produce the 4 video recording: 5 Listen, this was a fight, a ten, fifteen second fight, it should have been on videotape but that videotape is gone. [6] 7 ECF No. 11-21, p. 40. 8 They threw away the video, a video that was pointed directly down on the stairs where everybody testified this whole thing started. How do 9 you just throw away the video? Well it didn’t show anything. Well, we didn’t get to see it to make that determination if it showed anything. [10] 11 Id., p. 42. 12 On direct appeal, Contreras argued that the State’s failure to preserve the video 13 recording warranted the reversal of his conviction. ECF No. 13-6. The Nevada Supreme 14 Court rejected the claim as follows: 15 Appellant Gustavo Contreras contends that his conviction must be reversed because the State failed to preserve a video recording that was 16 “most likely” exculpatory and material to his defense. “The State’s loss or destruction of evidence constitutes a due process violation only if the 17 defendant shows either that the State acted in bad faith or that the defendant suffered undue prejudice and the exculpatory value of the 18 evidence was apparent before it was lost or destroyed.” Leonard v. State, 117 Nev. 53, 68 , 17 P.3d 397, 407 (2001). During the trial, Corrections 19 Sergeant Patrick Wahlquist testified that he reviewed the video recording from the security camera in the module where the incident occurred. 20 Although the recording depicted Contreras walking in a certain direction, it did not depict the incident. Wahlquist determined that the recording was 21 not relevant to the case and did not make a copy of it. Nothing in the record contradicts this testimony. We conclude that Contreras has not 22 shown that the State acted in bad faith or that the video had exculpatory value, and, therefore, Contreras has not demonstrated a due process 23 violation. 24 ECF No. 13-14, p. 2–3. 25 In addressing Contreras’s ineffective assistance of counsel claim, the state 26 district court decided as follows: 27 Defendant Contreras also proposes Mr. Arnold was ineffective as Supreme Court as indicated above, this Court notes Defendant has never 1 shown the recording actually was “exculpatory.” As noted by the high court, Corrections Officer Wahlquist testified at trial he viewed the video 2 and it showed Defendant Contreras walking in a certain direction. That is, it did not show the incident in question, and for that reason, the corrections 3 officer did not deem the recording to be relevant. Even if Mr. Arnold should have made efforts to obtain the video recording in question, Defendant 4 Contreras has failed to show a reasonable probability the trial’s outcome would have been different or that he suffered unfair prejudice by his 5 attorney’s “lack of effort.” 6 ECF No. 14, p. 11. 7 Then, on appeal, the Nevada Supreme Court held: 8 [A]ppellant claimed that his trial counsel was ineffective as counsel should have raised more arguments to show that a surveillance video 9 which the state failed to preserve for trial was actually exculpatory or was intentionally destroyed. Appellant failed to demonstrate that his trial 10 counsel's performance was deficient or that he was prejudiced. Counsel argued that the video was exculpatory and should have been 11 preserved. Appellant failed to demonstrate prejudice related to this claim as this court determined on direct appeal that the State did not act in bad 12 faith with respect to preservation of the video and that the video did not have exculpatory value. Contreras v. State, Docket No. 68644 (Oder of 13 Affirmance, September 12, 2012). Therefore, the district court did not err in denying this claim. [14] 15 ECF No. 14-8, p. 4. 16 Reviewed under § 2254(d), the state court’s adjudication of the claim did not 17 “result[] in a decision that was contrary to, or involve[] an unreasonable application of, 18 clearly established Federal law, as determined by the Supreme Court of the United 19 States,” nor did it “result[] in a decision that was based on an unreasonable 20 determination of the facts in light of the evidence presented in the State court 21 proceeding.” 22 Contreras has not refuted the Nevada Supreme Court’s findings that he failed to 23 show that the video recording was exculpatory or that it was destroyed in bad faith. See 24 California v. Trombetta, 467 U.S. 479, 489 (1984) (duty to preserve evidence is limited 25 to evidence that possesses exculpatory value that was apparent before it was 26 destroyed); Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal 27 defendant can show bad faith on the part of the police, failure to preserve potentially 1 misrepresents Wahlquist’s testimony in claiming that Wahlquist testified that he 2 “destroyed the video tape.” ECF No. 54, p. 23. At no point in his testimony did Wahlquist 3 state that he destroyed a videotape or, for that matter, that a videotape even existed. 4 Instead, he testified that he reviewed a video (which in all likelihood was an electronic 5 recording) and that, because it did not “show anything,” there was “no point for [him] to 6 keep it.” ECF No. 47, p. 140. While the distinction between “destroy” and “failure to 7 preserve” may not matter for the purposes of Trombetta/Youngblood, the fact remains 8 that there has been no showing that the evidence in question was exculpatory or that 9 the police acted in bad faith. Accordingly, Contreras has not established a reasonable 10 probability that counsel could have successfully argued that Contreras was deprived of 11 a fair trial due to the State’s failure to preserve evidence. 12 Ground Three is denied. 13 Ground Four 14 In Ground Four, Contreras alleges he was deprived of effective assistance of 15 counsel because counsel failed to contend that Wahlquist committed perjury when he 16 testified that the fight between him and Christian C. was not captured on security video. 17 The relevant portions of Wahlquist’s testimony are described and cited above. In 18 addressing this issue, the Nevada Supreme Court held: 19 [A]ppellant claimed that his trial counsel was ineffective for failing to argue that an officer committed perjury for testifying that the surveillance 20 video did not depict the fight….Appellant failed to demonstrate that his counsel’s performance was deficient or that he was prejudiced. Counsel 21 cross-examined the officer and the State’s witnesses regarding their version of events and appellant failed to demonstrate objectively 22 reasonable counsel would have argued that their testimony amounted to perjury. Appellant failed to demonstrate a reasonable probability of a 23 different outcome at trial had counsel argued the State’s witnesses committed perjury. [24] 25 ECF No. 14-8, p. 5. 26 Contreras has not presented any evidence, nor is there any evidence in the 27 record, that Wahlquist committed perjury when he testified that the video he reviewed 1 did not show the fight.3 Thus, the Nevada Supreme Court’s decision withstands scrutiny 2 under § 2254(d). 3 Ground Four is denied. 4 Ground Five 5 In Ground Five, Contreras alleges he was deprived of effective assistance of 6 counsel because counsel failed to retain any experts who could have provided an 7 explanation as to how the victim may have incurred his head wound. According to 8 Contreras, expert testimony would have resulted an acquittal “on all charges, because 9 the injury was not cause[d] by the alleged ‘weapon’ that the alleged victim added to his 10 fabricated story.” ECF No. 3, p. 11. 11 In addressing this issue, the Nevada Supreme Court decided as follows: 12 [A]ppellant claimed that his trial counsel was ineffective for failing to retain an expert to review the crime scene or discuss how the victim 13 obtained the wound to his head. Appellant failed to demonstrate deficiency or prejudice for this claim as he failed to show that expert witness 14 testimony of this type would have been helpful to his defense. In addition, the State’s witnesses discussed the crime scene and the victim’s head 15 wound and appellant failed to demonstrate that a defense expert witness would have testified in a different manner. Therefore, the district court did 16 not err in denying this claim. 17 ECF No. 14-8, p. 5. 18 Here again, this court must defer to the state court’s decision. Contreras does not 19 identify an expert who would have been able and willing to testify in favor of the 20 defense. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (noting that 21 speculation that an expert would have testified on the defendant’s behalf is not enough 22 to establish prejudice under Strickland). In addition, counsel effectively opposed the 23 State’s theory that Contreras cut Christian C. with a sharp weapon. Counsel elicited 24 favorable admissions from the State’s witnesses on cross-examination. ECF No.47, p. 25 37, 111, 130-31, 161. Also, counsel pointed out in closing argument that nobody 26 testified to actually seeing a weapon and that the State had not presented any expert [27] 3 In his reply, Contreras notes Wahlquist’s conflicting testimony about whether he kept a copy of the video 1 testimony establishing that Christian C.’s cut was caused by a blade rather than hitting 2 his head on stairs. ECF No. 11-21; p. 36, 42. Ultimately, the jury returned a verdict of 3 guilty of battery by prisoner without use of a deadly weapon, rather than with a deadly 4 weapon. ECF No. 11-24. Thus, Contreras has not satisfied either prong of the 5 Strickland standard. 6 Ground Five is denied. 7 IV. CONCLUSION 8 For the reasons set forth above, Contreras’s petition for habeas relief will be 9 denied. 10 Certificate of Appealability 11 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 12 Governing Section 2254 Cases requires this court to issue or deny a certificate of 13 appealability (COA). Accordingly, the court has sua sponte evaluated the claims within 14 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253 (c); Turner v. 15 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 16 Pursuant to 28 U.S.C. § 2253 (c)(2), a COA may issue only when the petitioner 17 "has made a substantial showing of the denial of a constitutional right." With respect to 18 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists 19 would find the district court's assessment of the constitutional claims debatable or 20 wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 21 U.S. 880 , 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 22 jurists could debate (1) whether the petition states a valid claim of the denial of a 23 constitutional right and (2) whether the court's procedural ruling was correct. Id. 24 Having reviewed its determinations and rulings in adjudicating Contreras’s 25 petition, the court declines to issue a certificate of appealability for its resolution of any 26 procedural issues or any of Contreras’s habeas claims. 27 IT IS THEREFORE ORDERED that petitioner’s petition for writ of habeas corpus 1 IT |S FURTHER ORDERED that a certificate of appealability is denied. 2 DATED this 13th day of November, 2019. / , . [3] 4 LAR 5 UNITED STATES DISTRICT JUDGE