Armando Ortiz v. Attorney General of the State

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARMANDO ANDRES ORTIZ, No. 21-15496 Petitioner-Appellant, D.C. No. 4:17-cv-00623-JGZ v. MEMORANDUM* ATTORNEY GENERAL OF THE STATE OF ARIZONA; DAVID SHINN, Director, Respondents-Appellees, and CHARLES RYAN, Respondent. Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding Submitted February 14, 2023** Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges. Arizona state prisoner Armando Andres Ortiz appeals pro se from the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). district court’s judgment denying his habeas petition under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, see Rowland v. Chappell, 876 F.3d 1174, 1180 (9th Cir. 2017), and we affirm. Ortiz alleges that his trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), by conceding Ortiz’s guilt to the aggravated assault charges and by failing to research and present a self-defense theory against those charges. The state courts’ resolution of these claims was neither contrary to, nor an unreasonable application of, Strickland. See 28 U.S.C. § 2254(d)(1). As the state trial court concluded, the decision to concede a less serious offense in order to defend against more serious ones can be a reasonable trial strategy, and it was so here because the evidence against Ortiz as to the assault charges was strong. See Gallegos v. Ryan, 820 F.3d 1013, 1027 (9th Cir.) (attorney’s admission of his client’s guilt was not ineffective assistance in light of the evidence against the client), amended on reh’g, 842 F.3d 1123 (9th Cir. 2016). Moreover, the state appellate court reasonably concluded that Ortiz failed to show he was prejudiced by counsel’s alleged failures in researching and presenting a self-defense theory because there was no reasonable probability that a jury would find a reasonable person in Ortiz’s position would think it necessary to fire “several shots from a handgun in front of a convenience store” in response to the 2 21-15496 guards’ use of force.1 Ortiz also contends that his counsel’s performance regarding his attempted second-degree murder and burglary charges fell below an objective standard of reasonableness. However, he cannot show prejudice because his convictions for these charges were vacated and the charges dismissed. See Strickland, 466 U.S. at 687. Nor does his opening brief “point us to specific instances of [defense counsel’s] conduct that demonstrate incompetent performance” as to these convictions. Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017). We treat Ortiz’s remaining arguments as a motion to expand the certificate of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999). AFFIRMED. 1 Because Ortiz does not point to persuasive evidence showing that he acted in self- defense, the state courts’ decisions were not based on unreasonable determinations of the facts, see 28 U.S.C. § 2254(d)(2), and we presume their factual findings to be correct, see 28 U.S.C. § 2254(e)(1). 3 21-15496