Opinion
2:20-cv-00800-CL
05-26-2024
JAVIER A. HERNANDEZ-CHAVEZ, Petitioner, v. TYLER BLEWETT, Respondent.
FINDINGS AND RECOMMENDATION
CLARKE, MAGISTRATE JUDGE
Petitioner Javier A. Hernandez-Chavez (“Petitioner”) brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 alleging claims based on the ineffective assistance of counsel. For the reasons set forth below, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 2) and decline to issue a certificate of appealability.
BACKGROUND
Petitioner and Susana Garcia-Munoz (“Garcia-Munoz”) have five children together, including one daughter, “DHG”. (Resp't Exs. (ECF No. 15), Exs. 103-105 (“Tr.”) at 72-73.) The family lived together until Petitioner and Garcia-Munoz permanently separated in 2007 or 2008, when DHG was five or six years old. (Id. at 25, 75.) After the separation, DHG lived with Garcia-Munoz and her boyfriend, Eddie, except for a one-year period in which DHG and her siblings were in foster care due to Garcia-Munoz's depression and physical abuse of the children. (Id. at 24-25, 77-79.)
When citing the trial transcript, the Court refers to the original transcript pagination in the upper right corner. When citing to all other Respondent's Exhibits, the Court refers to the page numbers located in the lower right corner of each exhibit.
Sometime in 2010, DHG and her siblings began having regular visits with Petitioner and his mother. (Id. at 58.) At that time, Petitioner lived with his mother and other family members in a trailer in Oregon City, and DHG and her siblings occasionally spent the night. (Id. at 27-29, 7677.) During some of those visits, Petitioner touched DHG's “private” with his hand, touched her private with his penis, and put his penis in her mouth. (Id. at 34-36, 38-43.) The abuse primarily occurred in Petitioner's bedroom, and Petitioner made DHG “pinkie promise” that she would not tell anyone because he would go to jail. (Id. at 36-37.)
At some point, Petitioner's girlfriend, Brenda, found blood in DHG's underwear and asked Garcia-Munoz if DHG was menstruating. (Tr. at 89-91.) Garcia-Munoz immediately suspected that somebody had “done something” to DHG because DHG had not yet begun to menstruate. (Id. at 92-93.) Garcia-Munoz thus questioned DHG, telling her that she “already knew someone had done something to her” and threatening to become angry if DHG did not tell her what happened. (Id. at 93.) DHG told Garcia-Munoz that Petitioner had “touched her private parts” and “put his part on her part[.]” (Id. at 95.) Garcia-Munoz immediately took DHG to a doctor, who reported the abuse to the police, and later took her to the Children's Center of Clackamas County for an evaluation. (Id. at 96-97.)
On November 18, 2011, a Clackamas County grand jury returned an indictment charging Petitioner with five counts of Rape in the First Degree; two counts of Sodomy in the First Degree; one count of Unlawful Sexual Penetration in the First Degree; and five counts of Sexual Abuse in the First Degree in connection with DHG's disclosures. (Resp't Ex. 102.) Petitioner pleaded not guilty on all counts and proceeded to a bench trial in May 2012.
The State presented several witnesses at trial but primarily relied on the testimony of DHG, who then was nine years old. (Tr. at 19.) During her testimony, DHG described the abuse in significant detail. (Id. at 32-45.) On cross-examination, however, Petitioner's trial attorney (“trial counsel”) asked DHG if it “[w]ould ... be fair to say” that she “sometimes ... ha[s] a problem telling the truth[,]” and DHG agreed that she did. (Id. at 67).
The other witnesses included Cynthia Gates, a detective with the Oregon State Police who investigated DHG's allegations, and Dr. Susan Skinner, who conducted DHG's exam at the Children's Center. (Tr. at 150-180.)
Garcia-Munoz testified after DHG, detailing the circumstances of DHG's disclosure and the events that preceded it. Toward the end of her testimony, the prosecutor asked Garcia-Munoz if, in her experience, DHG is “a truthful girl[.]” (Id. at 97.) Garcia-Munoz replied that DHG “sometimes ... doesn't say things (indiscernible) because of fear, but yes, she is honest.” (Id.)
In his defense, Petitioner sought to establish that DHG had lied about the abuse at Garcia-Munoz's behest. (Tr. at 258-62.) As part of that defense, trial counsel presented the testimony of Angela Gomez (“Gomez”), a social worker for the State of Washington who had worked with DHG and her siblings for two years. (Id. at 194-95.) During Gomez's testimony, trial counsel asked if she had been “able to form an opinion” as to DHG's truthfulness during her numerous visits with the children. In response, Gomez stated that DHG had “issues with honesty” and theft. (Id. at 206.) Petitioner did not testify.
The trial court ultimately found Petitioner guilty on all counts and provided a detailed explanation of its ruling, as follows:
The critical issue, from a legal perspective is, of course, whether the case has been proven beyond a reasonable doubt.... The ultimate question is whether there is the requisite level of certainty in order to convict.
In answering that question, the following facts and conclusions are important, some of which are helpful to the State and some helpful to the defense. First, the child's testimony was compelling as she related, through tears, what' happened to her. Also, the child's testimony included observations and sensory' experiences, such as observing [Petitioner] cleaning himself with a tissue, observing that [Petitioner] had blood on his penis[,] and the child experiencing pain.
Also of importance, the child's testimony regarding statements made by [Petitioner] such as a pinkie promise, that he was almost done after the child said that it hurt[,] and [Petitioner's statement that, “I will go to jail” if the child told anyone what happened. There are also the thoughts of the child; that she was afraid that her mom would hit her if she told and the child's concern of hurting [Petitioner] 's girlfriend's feelings if [she] found out about.. . [Petitioner's sexual contact with the child.
Facts helpful to the defense include the child stating at trial that the defendant made her watch sexual activity on a computer as opposed to the child's statements at the Children's Center, where she said she'd never watched pornography except once with her brother, Xavier, on her iPod. Also at trial, the child testified that she saw semen or white stuff, but at the Children's Center, she said she didn't see anything like that.
At trial, the child testified that she only once saw blood. At the Children's Center, she stated that,. .. “he bleeds after he's done.” At trial, she testified that the oral/genital contact occurred more than five times. At the Children's Center, she stated it happened once.
The child admitted at trial that sometimes she has problems telling the' truth. And at trial, a DHS character witness testified that in the witness's opinion, generally the child has issues with honesty when the witness was asked for an opinion as to the child's truthfulness.
And, of course, there is the way in which the mother approached the child before the initial disclosure, an example of what not to do. And so a question which must be asked is whether a valid complaint of sexual abuse could result
from that type of approach by the mother. Did the mother contaminate every statement and answer after the initial confrontation?
The answer is that a jury or a judge could conclude that a valid complaint of sexual abuse was made despite such circumstances, depending on the child's report and the later statements.
Phrased differently, an unwise and poor technique in obtaining an initial'' report of abuse does not mean that the abuse didn't occur. A chief concern in this case is whether the child told her mother that [Petitioner] abused her so the mother would not get mad at the child and hit her as she had ... been hit before.
However, for that to occur, this nine-year-old girl would have had to accomplish the following: One, create a specific and distinctive fact that [Petitioner] wiped himself with tissue; two, create a specific, distinctive, if not peculiar, fact that she saw blood and it was on [Petitioner]'s penis; three, create a specific and distinctive fact that his penis inside her was painful; four, create a specific and distinctive fact that when she complained of pain, he replied, “I'm almost done”; five, create a specific and distinctive fact that [Petitioner] said he would go to jail if she told; six, create a specific and distinctive, if not peculiar, fact that in order to seal or secure the promise not to tell, that they pinkie promised; seven, the child would then have had to fabricate a sentiment of being concerned about Brenda's feelings if Brenda found out what [Petitioner] had been doing to her.
It would be unreasonable to conclude that a nine-year-old, fourth-grade child could possess such an extraordinary level of sophistication to make up this cover line to perpetuate or carry out a lie. But there is a final fact, which provides' the requisite level of certainty to convict. It is from the [videorecording of the] .
Children's Center interview. At 12:28, the interviewer seeks to understand and clarify the location of abuse and asks, quote: “You had Stefanie's room. Is that where the touching happened?”
And the child, then, essentially, corrects the interviewer; corrects the adult and answers, “No. It was in Dad's room.” The nine-year-old corrected the misunderstanding, or at least gave direction to the adult. And that fact, coupled with the additional facts previously stated, leads to the conclusion that the State has proved its case beyond a reasonable doubt[.]”(Tr. at 278-82.) The trial court sentenced Petitioner to a custodial term totaling 300 months, to be followed by a lifetime term of post-prison supervision. (Tr. at 287; Resp't Ex. 101 at 12-25.)
Petitioner filed a direct appeal, arguing that the trial court had erred when it admitted Garcia-Munoz's testimony that DHG is “truthful” and “honest” and when it ordered Petitioner to' pay $1,600 In attorney fees. (Resp't Ex. 106 at 2.) In a written opinion, the Oregon Court of Appeals reversed the portion of the judgment requiring Petitioner to pay attorney fees but otherwise affirmed Petitioner's conviction and sentence. State v. Chavez, 263 Or.App. 187 (2014). The Oregon Supreme Court denied review. State v. Hernandez Chavez, 356 Or. 163 (2014).
Petitioner next filed a petition for postconviction relief (“PCR”). (Resp't Ex. 111.) In his counseled amended petition, Petitioner asserted two ineffective assistance of counsel claims based on trial counsel's failure to object to Garcia-Monoz's testimony as impermissible vouching and trial counsel's failure to investigate and call as a material witness Petitioner's mother (Resp't Ex'. 112 at 3-11.) After an evidentiary hearing, the PCR court rejected Petitioner's ineffectiveness claims and denied relief. (Resp't Exs. 124, 125.)
Petitioner appealed, asserting a single assignment of error:
ASSIGNMENT OF ERROR: The post-conviction court erred when it denied petitioner relief on his first claim, that trial counsel was ineffective and inadequate [when he failed to object to Garcia-Munoz's testimony that impermissible vouched for DHG's credibility].(Resp't Ex. 126 at 18.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp't Exs. 129, 130.)
On May 19,2020, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, raising three grounds for relief based on the ineffective assistance of trial counsel:
GROUND ONE: Trial Counsel committed plain error by not sua [s]ponte excluding testimony [of] victim's mother.
Supporting Facts: Counsel failed to object to vouchin[g] for victim's testimony by hearsay testimony of allege[d] victim as being honest can be construed as a[n] ... impermissible comment about victim's testimony.
GROUND TWO: Trial Counsel failed to subpoena and utilize] victim[‘s] mother[‘s] boyfriend.
Supporting Facts: The testimony of Maria De Los Angeles Chavez-Garcia mother of the victim was told by victim of the boyfriend that she was being
touched] by this male mother's boyfriend. That's why allege[d] victim was taken from her home. Counsel failed to investigate this claim to further Petitioner's] claims. Leaving Petitioner with no defense.
GROUND THREE: Counsel failed to object to hearsay testimony[.]
Supporting Facts: The testimony of allege[d] victim the state vouch as being permissible and “honest” and “truthful” vouchin[g] for victim credibility.(Pet. at 5-8.) Respondent urges this Court to deny habeas relief, arguing that Petitioner's claims are procedurally defaulted or were denied in a state-court decision that is entitled to deference.(Resp't Resp. to Pet. (ECF No. 14), at 5-11.)
Respondent initially asserted, but ultimately waived, a statute of limitations defense (ECF Nos.13; 53 at 2n.1.)
DISCUSSION
I Ground One
A. Legal Standards I. Deference to State-Court Decisions
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits re litigating any claim adjudicated on the merits in state court unless such adjudication resulted in a decision that was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) was “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and the petitioner has the burden of rebutting the presumption of correctness with clear and convincing evidence. 28 U.S.C. § 2254(e).
A state-court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362. 405-06 (2000). An “unreasonable application” of clearly established federal law occurs if the state court correctly identifies the governing legal principle but misapplies that principle to the facts at hand. See id. at 407 (holding that “a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case”). The “unreasonable application” clause requires the state court's decision to be more than merely erroneous or incorrect. See id. at 411 (noting that “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly”). Rather, the state court's application of clearly established federal law must be objectively unreasonable. See id. at 409 (instructing that a federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”).
A federal habeas court may not disturb a state-court decision on factual grounds unless the state court's decision was based on an unreasonable determination of the facts in light of the evidence before it. 28 U.S.C. § 2254(d)(2). Under the “unreasonable determination” clause, “[t]he question ... is not whether a federal court believes the state court's determination was. incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The Ninth Circuit has clarified that when a petitioner challenges the substance of a state court's findings, the federal habeas court “must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record,” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert denied, 543 U.S. 1038 (2004).
The AEDPA thus imposes “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of . the doubt.” Cullen v. Pinholster, 563 U.S. 170,181 (2011) (simplified); see also White v. Wheeler, 577 U.S. 73, 76-77 (2015) (acknowledging that the “AEDPA, by setting forth necessary predicates before a state-court judgment may be set aside, erects a formidable barrier' to federal habeas relief for prisoners whose claims have been adjudicated in state court”) (simplified). “The petitioner carries the burden of proof.” Pinholster, 563 U.S. at 181.
2. Ineffective Assistance of Counsel
An ineffective assistance of counsel claim is analyzed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686. Such a showing requires the petitioner to overcome a strong presumption the challenged conduct falls within the “wide range of reasonable professional assistance; that is the [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689. The first prong thus is satisfied only if “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed ... by the Sixth Amendment.” Id. at 687.
Second, a petitioner must demonstrate prejudice: “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. It is not enough if counsel's errors had only “some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must have been “so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable.” Id. In making the prejudice determination, the court must “consider the totality of the evidence before the judge or jury.” Id. at 695.
Analyzing an ineffective assistance of counsel claim under AEDPA is “all the more difficult” because both standards are “highly deferential and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). The question under such circumstances “is not whether counsel's actions were reasonable[,]” but “whether there is any reasonable argument that counsel satisfied Strickland''s deferential standard.” Id.
B. Analysis
In Ground One, Petitioner alleges that trial counsel was ineffective when he failed to object to Garcia-Munoz's testimony that DHG is “truthful” and “honest.” (Pet. at 5.) Petitioner argues that Garcia-Munoz's testimony constituted impermissible vouching under Oregon law, and that prevailing professional norms required trial counsel to object. (Br. in Supp. of Pet. (ECF No. 61) at 17, 21.) Petitioner maintains that because the case hinged on DHG's credibility, Garcia-Munoz's vouching “probably made the difference” at trial. (Br. in Supp. of Pet. (ECF No. 61) at 22-23.)
Oregon's rule against vouching “is a judicially created rule of evidence” that bars witnesses “from expressing a view on whether another witness is ‘telling the truth.'” State v. Black, 364 Or. 579, 585, 585 (2019); State v. Murphy, 319 Or.App. 330, 335 (2022) (quoting State v. Middleton, 294 Or. 427, 438 (1983)). The rule is intended to safeguard the jury's role as “the sole arbiter of witness credibility” and therefore “prohibits a witness from making a direct comment, or one that is tantamount to a direct comment, on another witness's credibility.” Black, 364 Or. at 585 (first citing State v. Chandler, 360 Or. 323, 330 (2016), then citing State v. Beauvais, 357 Or. 524, 545 (2015)). Although “the exact contours of [the vouching rule] can be ‘difficult to trace[,]”' the Oregon Supreme Court has made clear that vouching testimony “is categorically inadmissible.” Black, 364 Or. at 587.
As noted above, Petitioner presented a claim similar to Ground One in his PCR proceedings, arguing that there was “no credible explanation” for trial counsel's failure to object when the prosecutor “purposely requested testimony from Garcia-Munoz about DHG's credibility[.]” (Resp't Exs. 112 at 7; 114 at 18.) Petitioner claimed that due to the balanced nature of the parties' evidence at trial, “the smallest detail, like impermissible vouching testimony, could [have] be[en] outcome determinative[,]” and thus there was “more than a mere possibility” that trial counsel's failure to object “had a tendency to affect the result of the prosecution.” (Id. at 20.)
In opposition, the State argued that the defense directly challenged DHG's character for truthfulness when trial counsel asked if she sometimes had a “a problem telling the truth[,]” and therefore the prosecution “was entitled to support [DHG]'s character for truthfulness” under Oregon Evidence Code (“OEC”) 404(2)(b) and 608(1). (Resp't Suppl. Exs. (ECF No. 54), Ex. 131 at 8.) The State thus argued that Garcia-Munoz had “offered permissible opinion testimony about D[HG]'s character traitfor honesty or truthfulness” and had not commented on whether “she thought D[HG] was telling the truth” about the abuse. (Id. at 11.)
Pursuant to OEC 404, evidence of an individual's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except for “[e]vidence of a pertinent trait or character of the victim of the crime offered by an accused, or by the prosecution to rebut the same[.]” OEC 404(2)(b). Under OEC 608, the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but the evidence may refer only to character for truthfulness or untruthfulness and is admissible only after the character of the witness for truthfulness has been attacked. OEC 608(1).
In addition, the State submitted the affidavit of trial counsel, who “was not surprised” that the prosecutor attempted to rebut his challenge to DHG's credibility by asking Garcia-Munoz if DHG is generally honest. (Resp't Suppl. Ex. 134 ¶ 2.) Trial counsel averred that he did not object because he did not think such testimony was improper and he otherwise was confident the trial judge would disregard any improper attempts to bolster DHG's credibility. (Resp't Support Ex. 134 ¶¶ 2-3.) Trial counsel also noted that Garcia-Munoz's testimony opened the door for Gomez to offer her opinion as to DHG's character for truthfulness, which he felt “was huge” for the defense. (Id. ¶ 4.) Finally, trial counsel averred that he did not object because “it would be expected that the mother would ... testify [that DHG is generally honest] since [the defense] thought she had put [DHG] up to making the report.” (Id. ¶ 5.)
The PCR court ultimately rejected Petitioner's claim, finding that he did not prove that trial counsel failed to exercise reasonable skill and judgment by not objecting to Garcia-Munoz's testimony. (Resp't Ex. 125 at 6.) Specifically, the PCR court agreed that the testimony did not constitute impermissible vouching and held that there was no basis for trial counsel to object.
The PCR court explained:
Trial counsel had previously asked DHG on cross-examination whether she sometimes had a problem telling the truth. This attacked her character for truthfulness. That allowed the state to offer evidence of DHG's character for truthfulness or honesty, OEC 404(2)(b). Trial counsel made a conscious strategic decision not to object because he believed the testimony was admissible. Trial counsel also knew he had the Washington caseworker, Angela Gomez, to testify as a defense witness and that Ms. Gomez could testify to the victim's untruthfulness. This was “huge,” in his opinion. He thought that by asking [Garcia-Munoz] about DHG's character for truthfulness, [the prosecutor] had certainly opened the door for him to have Ms. Gomez offer an opinion about DHG's character for untruthfulness.
The testimony of Garcia-Munoz was not a comment on whether she believed the testimony of DHG regarding the allegations of sexual abuse. Her testimony related to whether, in her opinion, DHG was a truthful girl. There was no vouching and there was no basis for trial counsel to object, particularly since trial counsel had previously raised the issue of the character of DHG for
untruthfulness. Petitioner has not proven prejudice because he has not proven that an objection for vouching would have been granted. Therefore, there is no evidence that failure to make the objection had a tendency to affect the outcome of the trial.(Id.) The PCR court further held that even if Garcia-Munoz's testimony could be considered vouching, Petitioner still could not prove that he was prejudiced by trial counsel's failure to object, explaining:
Since the defense theory was that DHG was lying at the behest of [Garcia-Munoz], the fact that [she] testified that her daughter was basically “honest” could not have had any impact on the petitioner's case. If Judge Jones had reason to conclude that D[HG] was lying and that D[HG]'s mother had put her up to this, it would not matter if the mother thought that D[HG] was honest because the judge could conclude that of course [Garcia-Munoz] would say this in order to support her vendetta against petitioner. Judge Jones made clear when he announced his verdict, there were eight factors that he relied on to find petitioner guilty; none of these factors related to [Garcia-Munoz]'s opinion about D[HG]'s character trait for honesty or truthfulness.(Id.) The PCR court thus denied relief.
Upon review, this Court concludes that the PCR court's ruling was not objectively unreasonable. As noted above, the PCR court determined that Garcia-Munoz's testimony that DHG is generally honest did not amount to impermissible vouching under Oregon law, and this Court must defer to that ruling. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that “it is not the province of a federal habeas court to reexamine state-court determinations based on state-law questions”); see also Woods v.. Sinclair, 764 F.3d 1109, 1138-39 (9th Cir. 2014) (noting that a federal habeas court must defer to a state court's ruling if it is based on state law); Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) (acknowledging that “[s]tate courts are the ultimate expositors of state law, and [federal habeas courts are] bound by the state's construction” on state law matters). Because Garcia-Munoz's comments did not constitute impermissible vouching, trial counsel's failure to object on that basis was not ineffective. See Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (noting that counsel is not ineffective for failing to raise a meritless objection).
Because the Oregon Court of Appeals affirmed without opinion, this Court must “look through” to the last reasoned decision on the issue, i.e., the postconviction court's denial of Petitioner's ineffectiveness claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (explaining that where the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court must “look through” to the last reasoned decision issued in a lower state court, and presume the unexplained decision adopted the same reasoning).
Petitioner attempts to cast the PCR court's decision on the vouching issue as an unreasonable factual determination and argues that the PCR court's decision is “untenable” because it is based on an “erroneous premise.” Whether statements constitute impermissible vouching in Oregon, however, is a question of state law, see, e.g., Easter v. Mills, 239 Or.App. 209, 243 (2010), and Petitioner's arguments clearly center on the PCR court's construction and application of the Oregon Evidence Code. Petitioner's arguments therefore are without merit.
Even if Garcia-Munoz's testimony had warranted objection, however, this case was tried to a judge who would have recognized, and disregarded, testimony intended to improperly bolster DHG's credibility. Indeed, the trial judge did not mention or otherwise reference Garcia. Munoz's testimony at all when he gave a lengthy and detailed explanation of his ruling and the factors he relied on to reach a guilty verdict. Garcia-Munoz's comment that DHG is generally honest thus appears to have had little bearing on the outcome of trial, and this Court cannot conclude that the PCR court's decision denying relief was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accordingly, the PCR court's decision is entitled to deference and the district judge should deny habeas relief as to Ground One.
The parties agree that “Grounds One and Three concern the same challenge to trial counsel's failure to object to Garcia-Munoz's testimony that D was truthful[,]” (Pet'r's Br. at 13), and thus the district judge should also deny habeas relief as to Ground Three.
II Ground Two
Petitioner does not argue the merits of the claim alleged in Ground Two. In addition, Petitioner concedes that Ground Two is procedurally defaulted. (Pet'r's Br. at 13 n.4.) Accordingly, habeas relief is precluded as to Ground Two because it is procedurally defaulted and because Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on that claim. See 28 U.S.C. § 2248 (instructing that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true"); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case).
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 2), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order.
The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment petered pursuant to the Magistrate Judge's recommendation.