`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 1 of 17
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`RONALD EUGENE ALLEN, JR.,
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`Case No. 3:22-cv-00176-ART-CSD
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`ORDER
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`v.
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` NETHANJAH BREITENBACH,1 et al.,
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`Petitioner,
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`Respondents.
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`Petitioner Ronald Eugene Allen, Jr., a state prisoner who was found guilty
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`of battery on a protected person causing substantial bodily harm and was
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`sentenced to 8 to 20 years in prison, has filed a second-amended petition for writ
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`of habeas corpus under 28 U.S.C. § 2254. (ECF Nos. 30-8, 22.) This matter is
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`before this court for adjudication of the merits of the second-amended petition,
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`which alleges that the prosecutor engaged in misconduct and his trial counsel
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`failed to object to the introduction of improper prior bad acts and false testimony,
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`impeach a witness, and request a jury instruction. (ECF No. 22.) For the reasons
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`discussed below, this court denies the second-amended petition and a certificate
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`of appealability.
`I.
`BACKGROUND
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`A.
`Factual background2
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`Officer Leopold Karanikolas with the Metropolitan Police Department
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`1The state corrections department’s inmate locator page states that Allen is
`incarcerated at Lovelock Correctional Center. Nethanjah Breitenbach is the
`current warden for that facility. At the end of this order, this court directs the
`clerk to substitute Nethanjah Breitenbach as a respondent for Respondent Tim
`Garrett. See Fed. R. Civ. P. 25(d).
`2This court makes no credibility findings or other factual findings regarding the
`truth or falsity of this evidence from the state court. This court’s summary is
`merely a backdrop to its consideration of the issues presented in the second-
`amended petition.
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 2 of 17
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`testified that on August 9, 2016, he responded to “a harassment call between a
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`male and female” in Las Vegas, Nevada. (ECF No. 29-3 at 51–52.) When Officer
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`Karanikolas arrived at the scene, he saw Allen sitting in a car reading a
`newspaper. (Id. at 53.) Allen told Officer Karanikolas that he was meeting his
`family and waiting for them to arrive. (Id. at 54.) Officer Karanikolas got back in
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`his vehicle, and while he was trying to find Allen in a database, “a black female
`ran up to [his] car on the driver’s side.” (Id.) The woman “was very agitated, . . .
`upset, very scared, very frantic.” (Id. at 56.) While Officer Karanikolas was trying
`to interact with the woman, Allen “jumped out of [h]is vehicle, very quickly.” (Id.)
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`Officer Karanikolas got out of his vehicle too and conducted a pat down search of
`Allen at the front of the police vehicle. (Id. at 57.)
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`After the pat down, Allen ran to the passenger side of Officer Karanikolas’s
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`vehicle to get to the woman whom Officer Karanikolas had been speaking with.
`(Id. at 57.) Officer Karanikolas ran around his vehicle in the opposite direction to
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`confront Allen, and when Officer Karanikolas and Allen were both at the back of
`the vehicle, Allen “pushed through” Officer Karanikolas to get to the woman. (Id.
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`at 58, 60, 98.) Due to the impact, Officer Karanikolas had “to step back in order
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`to catch [his] balance,” and when he did so, he “felt like a pop in the back of [his]
`body in [his] leg,” causing him to “drop[ ] to the ground.” (Id. at 61.) Allen then
`continued to run in the direction of the woman. (Id. at 64.) Officer Karanikolas
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`tased Allen, causing him to fall to the ground, and Officer Karanikolas “hobbled”
`over to Allen and took him into custody. (Id. at 64–66.) Officer Karanikolas later
`learned that he had a partial tear in his right Achilles. (Id. at 68.)
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`Lisa Gordon, who was with the woman Allen was pursuing, testified that
`she observed the impact between Allen and Officer Karanikolas. (Id. at 29-3 at
`128, 131.) According to Gordon, Allen “punched” Officer Karanikolas. (Id. at 131.)
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`B.
`Procedural background
`The jury found Allen guilty of battery on a protected person causing
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 3 of 17
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`substantial bodily harm. (ECF No. 30-4.) Allen was adjudicated under the small
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`habitual criminal statute and sentenced to 8 to 20 years in prison. (ECF No. 30-
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`8.) Allen appealed, and the Nevada Court of Appeals affirmed on April 16, 2019.
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`(ECF No. 30-23.) Remittitur issued on May 13, 2019. (ECF No. 30-24.)
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`On May 27, 2020, Allen filed a state petition for writ of habeas corpus. (ECF
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`No. 30-27.) The state court denied post-conviction relief on August 18, 2021.
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`(ECF No. 31-7.) Allen filed a post-conviction appeal, and the Nevada Court of
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`Appeals affirmed the denial on April 11, 2022. (ECF No. 31-18.) Remittitur issued
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`on May 6, 2022. (ECF No. 31-19.)
`On or about April 13, 2022, Allen dispatched his pro se federal habeas
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`corpus petition. (ECF No. 6 at 6.) On May 12, 2022, this court screened Allen’s
`pro se petition and granted Allen’s motion for the appointment of counsel, and on
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`June 6, 2022, this court appointed the Federal Public Defender to represent
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`Allen. (ECF Nos. 5, 12.) Allen filed a counseled first-amended petition and
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`counseled second-amended petition on June 10, 2022, and October 21, 2022,
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`respectively. (ECF Nos. 14, 22.)
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`On April 20, 2023, Respondents moved to dismiss Allen’s second-amended
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`petition. (ECF No. 37.) This court denied the motion, finding that grounds 3 and
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`4 are technically exhausted and procedurally defaulted. (ECF No. 40.) This court
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`then deferred consideration of whether Allen can demonstrate cause and
`prejudice under Martinez v. Ryan, 566 U.S. 1 (2012) to overcome the procedural
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`default of grounds 3 and 4 until after the filing of an answer and reply in this
`action. (Id.) Respondents answered the second-amended petition on July 21,
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`2023, and Allen replied on October 26, 2023. (ECF Nos. 41, 46.)
`II. GOVERNING STANDARD OF REVIEW
`28 U.S.C. § 2254(d) sets forth the standard of review generally applicable
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`in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act
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`(“AEDPA”):
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 4 of 17
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`An application for a writ of habeas corpus on behalf of a person in
`custody pursuant to the judgment of a State court shall not be
`granted with respect to any claim that was adjudicated on the merits
`in State court proceedings unless the adjudication of the claim –
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`(1) resulted in a decision that was contrary to, or
`involved an unreasonable application of, clearly
`established Federal law, as determined by the Supreme
`Court of the United States; or
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`(2) resulted in a decision that was based on an
`unreasonable determination of the facts in light of the
`evidence presented in the State court proceeding.
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` state court decision is contrary to clearly established Supreme Court
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`precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a
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`rule that contradicts the governing law set forth in [the Supreme Court’s] cases”
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`or “if the state court confronts a set of facts that are materially indistinguishable
`from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73
`(2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000), and citing Bell
`v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable
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`application of clearly established Supreme Court precedent within the meaning
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`of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal
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`principle from [the Supreme] Court’s decisions but unreasonably applies that
`principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S.
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`at 413). “The ‘unreasonable application’ clause requires the state court decision
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`to be more than incorrect or erroneous. The state court’s application of clearly
`established law must be objectively unreasonable.” Id. (quoting Williams, 529
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`U.S. at 409–10) (internal citation omitted).
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`The Supreme Court has instructed that “[a] state court’s determination that
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`a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
`could disagree’ on the correctness of the state court’s decision.” Harrington v.
`Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652,
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 5 of 17
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`664 (2004)). The Supreme Court has stated “that even a strong case for relief does
`not mean the state court’s contrary conclusion was unreasonable.” Id. at 102
`(citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181
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`(2011) (describing the standard as a “difficult to meet” and “highly deferential
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`standard for evaluating state-court rulings, which demands that state-court
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`decisions be given the benefit of the doubt” (internal quotation marks and
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`citations omitted)).
`III. DISCUSSION
`A.
`Ground 1—prosecutorial misconduct
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`In ground 1, Allen alleges that, in violation of his rights under the Fifth,
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`Sixth, and Fourteenth Amendments, during rebuttal argument, the prosecution
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`committed misconduct when it improperly denigrated the defense theory and
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`disparaged defense counsel. (ECF No. 22 at 5.) Allen takes issue with the following
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`comments made during the prosecution’s surrebuttal closing argument: “Folks,
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`defense counsel comes up here and tells you what, when you have an
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`overwhelming amount of evidence in this case and the defendant is absolutely
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`boxed into a corner, this is what happens. Defense counsel does this, blames
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`everybody other than the defendant. Right?” (ECF No. 30-3 at 43.)
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`1.
`State court determination
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`In affirming Allen’s judgment of conviction, the Nevada Court of Appeals
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`held as follows:
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`Allen argues the State committed prosecutorial misconduct
`during closing rebuttal argument by disparaging defense counsel
`and his theory of defense. Specifically, he claims the State erred by
`arguing, “folks, defense counsel comes up here and tells you what,
`when you have an overwhelming amount of evidence in this case and
`the defendant is absolutely boxed into a corner, that is what
`happens. Defense counsel does this, blames everyone other than the
`defendant. Right?”
`Because Allen did not object to this statement at trial, he is not
`entitled to relief absent a demonstration of plain error. See Valdez v.
`State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). Even
`assuming, without deciding, the prosecutor’s comments were
`improper, Allen failed to demonstrate any error affected his
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 6 of 17
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`substantial rights. See id.
`(ECF No. 30-23 at 2–3.)
`2.
`Standard for prosecutorial misconduct claims
`“[T]he touchstone of due process analysis in cases of alleged prosecutorial
`misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith
`v. Phillips, 455 U.S. 209, 219 (1982). “The relevant question is whether the
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`prosecutors’ comments ‘so infected the trial with unfairness as to make the
`resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S.
`168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In
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`making that determination, this court looks to various factors: “the weight of the
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`evidence, the prominence of the comment in the context of the entire trial,
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`whether the prosecution misstated the evidence, whether the judge instructed
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`the jury to disregard the comment, whether the comment was invited by defense
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`counsel in summation and whether defense counsel had an adequate opportunity
`to rebut the comment.” Floyd v. Filson, 949 F.3d 1128, 1150 (9th Cir. 2020)
`(quoting Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010)). “[P]rosecutorial
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`misconduct[ ] warrant[s] relief only if [it] ‘had substantial and injurious effect or
`influence in determining the jury’s verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113
`(9th Cir. 2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).
`3.
`Analysis
`Because the prosecution is allowed to comment and criticize defense
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`theories, it is not readily apparent that the prosecutor’s comment was improper.
`See United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism
`of defense theories and tactics is a proper subject of closing argument.”); see also
`United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992) (“[T]he propriety
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`of the prosecutor’s remarks must be judged in relation to what would constitute
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`a fair response to the remarks of defense counsel.”). However, even if the
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`prosecutor’s comment about the defense shifting blame was improper, as the
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 7 of 17
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`Nevada Court of Appeals reasonably noted, it did not warrant the granting of
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`relief. This comment was isolated, did not imply that defense counsel was acting
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`unethically, was innocuous, and was meant to draw attention to an unfruitful
`defense tactic. See Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000)
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`(concluding that the State’s improper closing argument did not infect the trial
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`with unfairness because “the prosecutor’s statements were supported by the
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`evidence and reasonable inferences that could be drawn from the evidence”).
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`Accordingly, Allen fails to demonstrate that the prosecutor’s comment rendered
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`his trial fundamentally unfair or that it had a substantial and injurious influence
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`on the jury’s verdict. Because the Nevada Court of Appeals’ denial of this claim
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`constituted an objectively reasonable application of federal law and was not based
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`on an unreasonable determination of the facts, Allen is denied federal habeas
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`relief for ground 1.
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`B.
`Ground 2—counsel’s failure to object to prior bad act evidence
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`In ground 2, Allen alleges that his trial counsel was ineffective for failing to
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`object to prosecutorial misconduct when the State improperly introduced prior
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`bad acts evidence in violation of his Fifth, Sixth, and Fourteenth Amendment
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`rights. (ECF No. 22 at 7.) Allen takes issue with the following comments made
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`during the prosecution’s surrebuttal closing argument:
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`The evidence in this case is overwhelming. As I told you in voir dire,
`sometimes we’re left with just one person, convicted felon, drug
`addict, you name it - - it goes on and on. That’s what we’re left with
`- - or somebody - - a home invasion where nobody is home and we
`have no idea who it is and we have to piece it together. Not this case.
`(ECF No. 30-3 at 43.)
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`1.
`State court determination
`In affirming the denial of Allen’s state post-conviction petition, the Nevada
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`Court of Appeals held as follows:
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`First, Allen claimed that his trial counsel was ineffective for
`failing to object during the State’s rebuttal argument when the State
`improperly implied that it had personal knowledge of Allen’s prior
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 8 of 17
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`bad acts. During closing arguments, the State may “assert inferences
`from the evidence and argue conclusions on disputed issues.”
`Truesdell v. State, 129 Nev. 194, 203, 304 P.3d 396, 402 (2013). The
`State is also allowed reasonable latitude to argue concerning the
`credibility of witnesses. Rowland v. State, 118 Nev. 31, 39, 39 P.3d
`114, 119 (2002). A review of the State’s rebuttal argument reveals
`the State did not imply that Allen committed uncharged prior bad
`acts but rather argued that the evidence produced at trial proved
`that Allen was guilty and urged the jury to find that its witnesses
`were credible. Accordingly, Allen did not demonstrate that his
`counsel’s failure to object to the challenged statements fell below an
`objective standard of reasonableness.
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`In addition, significant evidence of Allen’s guilt of battery upon
`an officer resulting in substantial bodily harm was presented at trial.
`The evidence included an officer’s testimony that he was standing
`between Allen and a woman when Allen attempted to run toward the
`woman. The officer stated that Allen increased his speed when he
`realized that the officer was in his way. The officer testified that Allen
`ran into him at a high rate of speed and either pushed or punched
`him and that the resulting impact knocked him backward. The officer
`felt a pop in his leg and fell to the ground. The officer was
`subsequently transported to a hospital and required treatment for a
`partial tear in his right Achilles tendon. A second witness also
`testified that she viewed the incident and saw Allen run to the officer
`and punch him. In light of the significant evidence of Allen’s guilt
`produced at trial, Allen failed to demonstrate a reasonable
`probability of a different outcome had counsel objected to the
`challenged statements during the State’s rebuttal argument.
`Therefore, we conclude the district court did not err by denying this
`claim without conducting an evidentiary hearing.
`(ECF No. 31-18 at 3–4.)
`2.
`Standard for ineffective assistance of counsel claims
`In Strickland v. Washington, the Supreme Court propounded a two-prong
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`test for analysis of claims of ineffective assistance of counsel requiring the
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`petitioner to demonstrate (1) that the attorney’s “representation fell below an
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`objective standard of reasonableness,” and (2) that the attorney’s deficient
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`performance prejudiced the defendant such that “there is a reasonable
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`probability that, but for counsel’s unprofessional errors, the result of the
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`proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court
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`considering a claim of ineffective assistance of counsel must apply a “strong
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`presumption that counsel’s conduct falls within the wide range of reasonable
`professional assistance.” Id. at 689. The petitioner’s burden is to show “that
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`counsel made errors so serious that counsel was not functioning as the ‘counsel’
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 9 of 17
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`guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to
`establish prejudice under Strickland, it is not enough for the habeas petitioner
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`“to show that the errors had some conceivable effect on the outcome of the
`proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the
`defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
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`Where a state district court previously adjudicated the claim of ineffective
`assistance of counsel under Strickland, establishing that the decision was
`unreasonable is especially difficult. See Richter, 562 U.S. at 104–05. In Richter,
`the United States Supreme Court clarified that Strickland and § 2254(d) are each
`highly deferential, and when the two apply in tandem, review is doubly so. Id. at
`105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal
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`quotation marks omitted) (“When a federal court reviews a state court’s
`Strickland determination under AEDPA, both AEDPA and Strickland’s deferential
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`standards apply; hence, the Supreme Court’s description of the standard as
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`doubly deferential.”). The Supreme Court further clarified that, “[w]hen § 2254(d)
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`applies, the question is not whether counsel’s actions were reasonable. The
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`question is whether there is any reasonable argument that counsel satisfied
`Strickland’s deferential standard.” Richter, 562 U.S. at 105.
`3.
`Analysis
`Nevada law prohibits the admission of “[e]vidence of other crimes, wrongs
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`or acts . . . to prove the character of a person in order to show that the person
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`acted in conformity therewith.” Nev. Rev. Stat. § 48.045(2). However, as the
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`Nevada Court of Appeals reasonably determined, the prosecution did not violate
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`this law by implying that Allen committed uncharged prior bad acts. Indeed, the
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`prosecutor’s “[n]ot this case” comment following his discussion of “convicted
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`felon[s], drug addict[s]” shows that the prosecutor was not imputing any bad act
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`commentary onto Allen. Rather, the prosecutor appears to have been merely
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`explaining that there was overwhelming evidence of Allen’s guilt in this case due
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`to Officer Karanikolas’s testimony compared to, for example, a case in which the
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`only evidence presented comes from unreliable sources such as “convicted
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`felon[s], [or] drug addict[s].” Further, the jury was instructed that the arguments
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`of counsel were not evidence. (ECF No. 30-1 at 8.) Thus, Allen fails to demonstrate
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`that his trial counsel acted deficiently by not objecting to the prosecutor’s
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`comment. Because the Nevada Court of Appeals’ denial of this claim constituted
`an objectively reasonable application of Strickland’s performance prong and was
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`not based on an unreasonable determination of the facts, Allen is denied federal
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`habeas relief for ground 2.
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`C.
`Ground 3—counsel’s failure to object to the false testimony
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`In ground 3, Allen alleges that his trial counsel was ineffective for failing to
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`object to the prosecution’s presentation of false testimony in violation of his rights
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`under the Fifth, Sixth, and Fourteenth Amendments. (ECF No. 22 at 8.) Allen
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`explains that Officer Karanikolas changed his testimony dramatically between
`the preliminary hearing and the trial. (Id. at 9.)
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`1.
`Procedural default
`This court previously determined that ground 3 was technically exhausted
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`because it would be procedurally barred in the state courts. (ECF No. 40 at 6–7.)
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`Allen previously argued that he could demonstrate cause and prejudice under
`Martinez v. Ryan, 566 U.S. 1 (2012) to excuse the default. (Id.) This court found
`that Allen had met three of the elements of Martinez: (1) he had no counsel during
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`his state post-conviction habeas corpus proceedings, (2) his state post-conviction
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`petition was the initial proceeding regarding claims of ineffective assistance of
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`trial counsel, and (3) Nevada law requires that a claim of ineffective of assistance
`of trial counsel be raised in a post-conviction habeas corpus proceeding. (Id.)
`However, this court deferred consideration of the fourth element of Martinez:
`whether the claim of ineffective assistance of trial counsel is substantial. (Id.) This
`court will now determine, pursuant to a de novo review, whether Allen’s ineffective
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 11 of 17
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`assistance of trial counsel claim is substantial. See Ramirez v. Ryan, 937 F.3d
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`1230, 1243 (9th Cir. 2019).
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`2.
`Background information
`During cross-examination, Allen’s trial counsel asked Officer Karanikolas
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`if he “remember[ed] testifying at [the] preliminary hearing that . . . there was no
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`. . . collision” between him and Allen. (ECF No. 29-3 at 84.) Officer Karanikolas
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`responded that he did not remember his preliminary hearing testimony because
`he was still recovering from surgery and was on medication. (Id. at 84–85.) Allen’s
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`trial counsel then asked Officer Karanikolas if (1) he “recall[ed] testifying at the
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`preliminary hearing, [‘]So then that’s when I had to step back because he had
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`kind of pushed through me to get to me, kind of swam through me[‘]?” and (2) if
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`he “remember[ed] testifying at the preliminary hearing . . . that [he did not] think
`[Allen] had any intent to make contact with [him]?” (Id. at 100, 101.) Later, at the
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`prosecutor’s request, Officer Karanikolas read the pertinent portions of his
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`preliminary hearing testimony to the jurors as follows:
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`But you were never under the impression he wanted to injure [you]
`in any way? Answer is: No. Question - - question is: Or ever - - or
`even make contact with you? Answer is: No. He wanted to go after
`her. Question is: He just - - that’s exactly right. He wanted to go after
`someone else. She was there. Answer was: Right. And then, there
`happened to be some kind of collision maybe. Answer was: No, there
`was not. There was not a collision. He had to get past me to get to
`her. Question was: All right. Answer was: So I became - - so when
`you say he didn’t want to go after me, let me go ahead and clarify.
`Answer: Correct. I was not the primary target. That is correct.
`However, in order to get to her, he had to get through me. . . .
`Question is: Okay. Describe how that happened. Answer is: Like I
`said, I was so - - there was the car and the rear taillights. Because
`that’s when were - - that’s where we’re at. And then this was me. So
`he’s trying to go between the two of us, the car and the rear taillights
`is what he was trying to do. So I remember him kind of pushing both
`sides to get kind of - - kind of like when you’re swimming, kind of
`like a swimming motion is just the best way I could describe it - - is
`the best way I could describe it. Okay. Answer: So that’s - - so then
`that’s when I had to step back because he kind of pushed me to go
`through me, kind of swim through me. . . . Answer: And that’s when
`I stepped back. And that’s when I felt the pain. I mean, it just - - I
`mean, it was a pop and a pain.
`(Id. at 121–123.) During the prosecutor’s follow-up questions, Officer Karanikolas
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 12 of 17
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`testified that (1) the “preliminary hearing transcript kind of failed to articulate
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`exactly what the heck happened that day,” (2) he did not “mean to lie to anybody
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`at [the] preliminary hearing,” and (3) he was “just trying to answer the questions
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`as best as” he could at the preliminary hearing but he was nervous and in a lot
`of pain at the time. (Id. at 123–124.)
`3.
`Analysis
`As Allen correctly asserts, it is improper for the prosecution to obtain a
`conviction using false evidence. See Napue v. Illinois, 360 U.S. 264, 269 (1959)
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`(holding that “a conviction obtained through use of false evidence, known to be
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`such by representatives of the State, must fall under the Fourteenth
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`Amendment”). However, Allen fails to demonstrate that Officer Karanikolas’s trial
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`testimony amounted to false evidence. Rather, it appears that there were merely
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`discrepancies between Officer Karanikolas’s preliminary hearing testimony and
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`trial testimony. And rather than making an unfruitful motion to strike Officer
`Karanikolas’s testimony pursuant to Napue, Allen’s trial counsel reasonably
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`confronted these discrepancies by impeaching Officer Karanikolas with them
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`during cross-examination. Consequently, because Allen fails to support his
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`contention that his trial counsel acted deficiently, Allen’s ineffective-assistance-
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`of-counsel claim is not substantial. Therefore, Allen fails to demonstrate the
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`requisite prejudice necessary to overcome the procedural default of ground 3.
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`Ground 3 is dismissed.
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`D. Ground 4—counsel’s failure to impeach a witness
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`In ground 4, Allen alleges that his trial counsel was ineffective for failing to
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`impeach Officer Karanikolas with his medical records in violation of his Fifth,
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`Sixth, and Fourteenth Amendment rights. (ECF No. 22 at 11.)
`1.
`Procedural default
`As was the case with ground 3, this court previously determined that
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`ground 4 was technically exhausted because it would be procedurally barred in
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 13 of 17
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`the state courts. (ECF No. 40 at 6–7.) Again, Allen argued that he could
`demonstrate cause and prejudice under Martinez to excuse the default. (Id.) Like
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`with ground 3, this court found that Allen had met the first three elements of
`Martinez and deferred consideration of the fourth element: whether the claim of
`ineffective assistance of trial counsel is substantial. (Id.) This court will now
`determine, pursuant to a de novo review, whether Allen’s ineffective assistance of
`trial counsel claim is substantial. See Ramirez, 937 F.3d at 1243.
`2.
`Background information
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`In a consultation at University Medical Center on August 9, 2016, Richard
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`Wulff, MD, stated the following regarding Officer Karanikolas: “Leopoldo is a 38-
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`year-old male police officer who was chasing a suspect this evening. He turned to
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`chase the suspect as he turned a different direction, and he felt a pop in the back
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`of his right ankle.” (ECF No. 48-1 at 15.) In another medical record from Sikisam
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`Magoyag, MD, on August 9, 2016, at University Medical Center, it was reported
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`that Officer Karanikolas “was at work today chasing a suspect when he twisted
`his right ankle.” (Id. at 52.) And finally, in a medical record from Jefferson Bracey,
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`DO, on August 9, 2016, at University Medical Center, it was reported that Officer
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`Karanikolas “was chasing after a suspect. He stepped funny and felt a pop in his
`right Achilles area and has pain in that area.” (Id. at 237.)
`3.
`Analysis
`Because Officer Karanikolas’s medical records do not provide that Allen
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`made any contact with Officer Karanikolas during their interaction—instead
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`providing only that Officer Karanikolas’s injury occurred during his pursuit of
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`Allen—it would have been beneficial for Allen’s trial counsel to have impeached
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`Officer Karanikolas with his medical records. However, even if Allen’s trial counsel
`acted deficiently in this regard, Allen fails to demonstrate prejudice. See Doe v.
`Ayers, 782 F.3d 425, 431 (9th Cir. 2015) (concluding that the defendant’s trial
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`counsel “could have done a much better job of impeaching [the witness], . . . but
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`Case 3:22-cv-00176-ART-CSD Document 52 Filed 01/10/25 Page 14 of 17
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`the failures regarding impeachment of [the witness] are of comparatively little
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`consequence”). Indeed, when looking at the overall interaction between Officer
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`Karanikolas and Allen, Officer Karanikolas’s medical records were consistent with
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`his trial testimony. Officer Karanikolas testified that after patting down Allen,
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`Allen ran around Officer Karanikolas’s vehicle, and Officer Karanikolas pursued
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`him. When Officer Karanikolas confronted Allen, Allen pushed through him. Allen
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`then continued to run, and Officer Karanikolas tased him and took him into
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`custody. As such, given that Officer Karanikolas’s medical records were
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`harmonious with the bigger picture regarding Officer Karanikolas’s general
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`pursuit of Allen, impeaching Officer Karanikolas with his medical records would
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`have had little consequence to the outcome of Allen’s trial. Consequently, because
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`Allen fails to support his contention that his trial counsel’s deficiency resulted in
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`prejudice, Allen’s ineffective-assistance-of-counsel claim is not substantial.
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`Accordingly, Allen fails to demonstrate the requisite prejudi