United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Maria
Davila United States Magistrate Judge.
This
matter is on referral to the Court pursuant to Rules 72.1 and
72.2 of the Local Rules of Civil Procedure. Pending before
the Court is Petitioner Victor Lizardi's pro se Petition
Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus,
which is now fully briefed. (Docs. 1, 14, 17.) For the
following reasons, the Court recommends that the petition be
denied.
I.
Background
On
September 13, 2012, Petitioner was indicted for first-degree
murder and armed robbery. (Doc. 14-1 at 3.)[1] Trial commenced
on April 16, 2013. (See Id. at 5.) The State
presented evidence that, on the night of August 16, 2011,
Petitioner was a passenger in a vehicle being driven by
Cecilia Moran when he noticed a parked car owned by the
victim, Javier Pareida. (Doc. 14-2 at 38-41.) As Petitioner
was determining whether there was anything he could steal
from the car, Pareida approached and confronted him.
(Id. at 42- 43.) Petitioner reentered Moran's
vehicle, and Moran sped off. (Id. at 44.)
Pareida
followed, yelling at Moran to pull over and grabbing his
crotch area as if he had a concealed firearm. (Id.
at 44-45.) Moran eventually pulled over. (Id. at
47.) Pareida exited his car and “tr[ied] to get all
hard with” Petitioner. (Id. at 47-48.)
Petitioner exited Moran's vehicle because he was
“not going to let somebody punk him.”
(Id. at 48.) At that point, Pareida recognized Moran
as someone he had met through a mutual friend, and the two
exchanged phone numbers. (Id. at 48-50.) Following
the exchange, Pareida retrieved his car keys and dangled
them, taunting Petitioner to take them. (Id. at 50.)
Petitioner drew his firearm and shot Pareida six times,
killing him. (Id. at 13-18, 51-53.) Petitioner drove
away in Pareida's car. (Id. at 56-57.) He and
Moran later searched the car, taking money from inside.
(Id. at 57.)
Petitioner
was convicted of armed robbery and first-degree murder (on
both premeditation and felony-murder theories). (Doc. 14-3 at
2, 5.) He received sentences of natural life and a concurrent
term of imprisonment of 10.5 years. (Id. at 18-19.)
Petitioner appealed, arguing that the evidence was
insufficient to uphold his convictions and that a criminal
restitution order entered at his sentencing hearing should be
vacated. (See Id. at 27.) On July 11, 2014, the
Arizona Court of Appeals vacated the restitution order but
upheld Petitioner's convictions. (Id. at 72-76.)
Petitioner did not seek review in the Arizona Supreme Court.
(Id. at 78.)
On July
24, 2014, Petitioner filed a notice of post-conviction relief
(“PCR”). (Doc. 14-3 at 82-85.) On January 19,
2016, Petitioner filed a PCR petition raising the following
claims:
1. Was trial counsel ineffective for failing to properly
argue the admissibility of evidence about the victim's
prior conduct, and was appellate counsel ineffective for not
raising the issue on appeal?
2. Was trial counsel ineffective for failing to call David
Pesina as a witness?
3. Was trial counsel ineffective for advising Petitioner to
not testify?
4. Was trial counsel ineffective for failing to object during
closing argument to the prosecutor's purportedly
incorrect statement regarding the law of self-defense?
5. Did the prosecutor engage in misconduct by commenting on
Petitioner's failure to testify? Was trial counsel
ineffective for failing to object, and was appellate counsel
ineffective for not raising the issue on appeal?
6. Was it error to not instruct the jury regarding the rules
of defense of property? Was trial counsel ineffective for not
requesting such an instruction, and was appellate counsel
ineffective for not raising the issue on appeal?
(Id. at 87-104.)
On May
10, 2016, the PCR court summarily dismissed the fourth and
fifth claims as without merit. (Doc. 1-1 at 51-52.) Following
an evidentiary hearing on the remaining claims, the PCR court
issued a written ruling denying the PCR petition in its
entirety. (Doc. 14-4 at 59-62.) Petitioner sought review of
all his claims in the Arizona Court of Appeals. (Id.
at 64-83.) On January 25, 2017, the Arizona Court of Appeals
denied Petitioner's claims on the merits, finding that
counsel was not deficient. (Id. at 85-91.) The
Arizona Supreme Court denied review on August 2, 2017.
(Id. at 93.)
Petitioner
filed the instant petition on August 1, 2018, presenting the
same claims and arguments raised in the PCR petition. (Doc. 1
at 26-30.) Respondents answered, arguing that because the
Arizona Court of Appeals' decision is both legally and
factually correct, Petitioner cannot satisfy 28 U.S.C. §
2254(d). (Doc. 14 at 16-23.)
II.
Standard of Review
A.
Antiterrorism and Effective Death ...