Lizardi v. Ryan

          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 ...