Rogelio Espinoza v. Marion Spearman

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 21 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ROGELIO CUEVAS ESPINOZA, No. 13-57167

Petitioner - Appellant, D.C. No. 3:10-cv-00397-WQH-

BGS

v.

MARION SPEARMAN, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted May 2, 2016 Pasadena, California

Before: PREGERSON, BYBEE, and N.R. SMITH, Circuit Judges.

Rogelio Espinoza appeals the district court’s denial of his writ of habeas

corpus and denial of his request for an evidentiary hearing.

On March 10, 2001, Espinoza attended a relative’s party at a convention hall

in celebration of a baptism. At the party, a fight erupted between Espinoza and

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. two brothers, Arturo Rivera (Arturo) and Adan Rivera (Adan). Espinoza was

wounded during the fight, and then retreated. Espinoza’s uncle handed him a

semi-automatic handgun and…

*911 MEMORANDUM *

Rogelio Espinoza appeals the district court’s denial of his writ of habeas corpus and denial of his request for an evidentiary hearing.

On March 10, 2001, Espinoza attended a relative’s party at a convention hall in celebration of a baptism. At the party, a fight erupted between Espinoza and two brothers, Arturo Rivera (Arturo) and Adan Rivera (Adan). Espinoza was wounded during the fight, and then retreated. Espinoza’s uncle handed him a semi-automatic handgun and showed him how to use it.

Shortly thereafter, a second confrontation occurred outside the party. Espinoza fired the gun several times at the ground, in the air, and in Arturo’s general direction to keep Arturo and Adan at bay. A crowd quickly gathered, and a struggle ensued to wrest the gun away from Espinoza. Espinoza fired the gun during this struggle several times in various directions, by his account, “because people were ‘yanking’ at his hand.” Arturo was shot in the right eye, which he consequently lost. Forensic evidence suggested that Arturo was shot from a distance of more than three or four feet. Eight cartridge casings and a buhet fragment were recovered. Forensics showed the bullets had…

dissenting:

The Supreme Court unanimously reversed this court “for failing to accord required deference to the decision of a state court” in Harrington v. Richter, 562 U.S. 86, 92 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011). Again, the majority here fails to accord the proper deference to the state court’s decision and seems to plead for the Supreme Court to once again unanimously reverse us. Therefore, I must dissent.

When a prisoner asks us to set aside a state court sentence due to ineffective assistance of counsel, we must give the state court’s decision double deference. Cullen v. Pinholster, 563 U.S. 170, 190 , 131 S.Ct. 1388 , 179 L.Ed.2d 557 (2011). At the first level of deference, we must give deference to the trial counsel’s “wide latitude ... in making tactical decisions.” Strickland v. Washington, 466 U.S. 668, 689 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (citing United States v. Decoster, 624 F.2d 196, 208 (D.C. Cir. 1976)). In order to establish ineffective assistance of counsel under Strickland , Espinoza has the burden to prove “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687 , 104…