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Lopez v. Ryan

United States District Court, Ninth Circuit

August 2, 2013

Robert Sanchez Lopez, Petitioner,
Charles L. Ryan, et al., Respondents.


G. MURRAY SNOW, District Judge.

Pending before this Court is a Petition for Writ of Habeas Corpus filed by Petitioner Robert Sanchez Lopez. (Doc. 1.) Magistrate Judge Lawrence O. Anderson filed a Report and Recommendation (R&R), in which he recommended that the Court deny the petition with prejudice; Lopez has objected to the R&R. (Docs. 23, 24.) Because objections have been filed, the Court will review the petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court accepts the R&R and denies the petition.


On September 11, 2009, a grand jury indicted Lopez on one count each of marijuana possession and forgery. (Doc. 20-1, Ex. A.) After the grand jury returned the indictment, the State further alleged historical non-dangerous felony convictions, felony committed while on release, multiple offenses not committed on the same occasion, and other aggravating circumstances. ( Id., Exs. B-E.) On January 29, 2010, Lopez moved to represent himself at trial. ( Id., Ex. F.) He filled out a formal waiver form, and the trial court determined on February 2 that Lopez "knowingly, intelligently, and voluntarily waive[d] his right to counsel and desire[d] to proceed Pro Per. " ( Id., Exs. G, H.) The court retained advisory counsel for Lopez. ( Id. ) Trial began on February 10, 2010, and the jury returned a verdict of guilty on both counts on February 17. ( Id., Exs. I, J.) Around one month later, the trial court sentenced Lopez to three years' incarceration for the marijuana offense and five years for the forgery offense, to be served concurrently. ( Id., Ex. K.)

Lopez appealed. His attorney filed an Anders brief on August 26, 2010, and stated that he found no arguable question of law that is not frivolous. ( Id., Ex. L.) The Arizona Court of Appeals allowed Lopez to file a supplemental brief. ( Id., M.) On November 30, 2010, the Court of Appeals affirmed the conviction and rejected all of Lopez's arguments. (Doc. 20-2, Ex. N.) It also denied Lopez's subsequent Motion for Reconsideration. ( Id., Exs. O, P.) Lopez petitioned for review in the Arizona Supreme Court and was denied. ( Id., Exs. Q, R.)

Lopez filed a petition for post-conviction relief on August 22, 2011. ( Id., Ex. S.) Once again, counsel filed a Notice in which he asserted that he found no colorable claim for relief. ( Id., Ex. T.) Lopez filed his supplemental brief, and the court denied his petition on March 12, 2012. ( Id., Exs. U, V.) He has not appealed that denial.

Lopez filed the instant petition on September 6, 2011. (Doc. 1.) He cites four grounds for relief: (1) "Constructive Fraud... [, ] willful misrepresentation of the facts in drafting the indictment"; (2) "The Jury considered improper evidence[.] The written Jury instruction leaving out Subsection B"; (3) "The two Judges unfairly invoked an adversarial role rather than a neutral role"; and (4) prosecutorial misconduct. ( Id. at 6-9.) Lopez, however, supplements each of these claims with subparts that can be construed as separate grounds for relief. Magistrate Judge Anderson issued an R&R on May 15, 2013, in which he recommended denial of the petition. (Doc. 23.) Lopez timely filed his objections on May 21, 2013. (Doc. 24.)



By statute, the writ of habeas corpus affords relief to persons only when they are in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). The writ may be granted by "the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." Id. § 2241(a). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id. § 2244 et seq.

Under AEDPA, the Court may not grant habeas relief unless it concludes that the state's 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. Id. § 2254(d)(1)-(2). Neither can the Court grant habeas relief under AEDPA if the petitioner has failed to exhaust his claim in state court. Id. § 2254(b)(1)(A); see O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999).

A court reviewing a petition alleging that a state court violated a constitutional rule[2] can grant relief only if the state court decision was "contrary to, or involved an unreasonable application of" clearly established law. Williams v. Taylor, 529 U.S. 362, 391 (2000). A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, " or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Id. at 405-06. "Clearly established Federal law" in § 2254(d)(1) refers to the Supreme Court's precedents in effect at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Greene v. Fisher, 132 S.Ct. 38, 44 (2011). "A legal principle is clearly established' within the meaning of this provision only when it is embodied in a holding of this Court." Thaler v. Haynes, 559 U.S. 43, 47 (2010). In applying these standards, the federal habeas court reviews the last reasoned decision by the state court. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

A state court's decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle... but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75. The "unreasonable application" clause requires the state court's application of Supreme Court law to be more than incorrect or erroneous in the eyes of the reviewing court; it must be objectively unreasonable. Id. Habeas is not granted merely when a federal court disagrees with a state court's constitutional interpretation: "the most ...

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