Charles Kelly Chavez v. JACKIE CRAWFORD and JAMES SCHOMIG

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES KELLY CHAVEZ,
Petitioner - Appellant,
v.
JACKIE CRAWFORD and JAMES
SCHOMIG,
Respondents - Appellees.
No. 08-17191
D.C. No. 2:03-cv-00173-KJD-LRL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted June 15, 2010**
San Francisco, California
Before: O’SCANNLAIN, TASHIMA, BEA, Circuit Judges.
FILED
JUN 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
Charles Chavez (“Chavez”) appeals from the district court’s denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction pursuant
to 28 U.S.C. § 2253 and we affirm.
Chavez was convicted in Nevada state court of the first-degree murder of his
girlfriend Jamie Rodgers (“Jamie”), robbery, and unlawful use of an ATM card for
withdrawal of money. Under the Antiterrorism and Effective Death Penalty Act,
we can grant a habeas petition only if the state court’s adjudication of the claims
“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.” 28 U.S.C. § 2254(d).
Chavez raised three claims of ineffective assistance of counsel. The Nevada
Supreme Court rejected all of his claims on the ground that Chavez could not show
that his counsel’s failures prejudiced him under the second prong of Strickland v.
Washington, 466 U.S. 668 (1984), because of the overwhelming evidence of his
guilt. This decision was not an unreasonable application of Strickland.
1. Chavez contends his counsel was ineffective because counsel did not call
Debbie Goldasich or Linda Pirolli to testify and did not cross-examine thoroughly
enough Stacey Bell and Tracey Chavez. The Nevada Supreme Court denied this
claim on grounds that counsel’s decisions were tactical and Chavez could not

-- 2 of 4 --

3
establish prejudice because there was no reasonable probability the testimony of
these witnesses would have changed the verdict in light of the overwhelming
evidence of Chavez’s guilt. This was not an unreasonable application of
Strickland; counsel’s tactical decisions were reasonable, the evidence against
Chavez was overwhelming. The coroner testified that Jamie’s injuries
conclusively demonstrated that she had been strangled and had not drowned.
Chavez admitted to being present with Jamie at Lake Mead on the night she died,
and DNA testing confirmed that Jamie’s blood was on the shirt Chavez had worn
that night. Chavez had also told three inconsistent versions of what had happened
to Jamie, all of which the jury heard. The Nevada Supreme Court reasonably
concluded there was no prejudice to Chavez.
2. Chavez contends his counsel was ineffective because counsel did not object
to the coroner’s testimony that Jamie had a vaginal bruise that pre-dated the night
of her death that would have made sexual intercourse painful. The prosecutor used
this testimony in closing argument in combination with the fact Chavez’s semen
was discovered in Jamie’s vagina to suggest that, because intercourse would have
been painful, Jamie would not have consented to having sex with Chavez.
However, Chavez was never charged with rape.

-- 3 of 4 --

4
The Nevada Supreme Court held that Chavez could not establish prejudice.
Faced with the overwhelming evidence of Chavez’s guilt described above, there
was no reasonable probability the outcome would have been different even if the
jury were not left with the impermissible inference that Chavez had raped Jamie.
This was not an unreasonable application of Strickland.
3. Chavez contends his counsel was ineffective because counsel failed to object
to several instances of “prosecutorial misconduct” during closing argument.
Chavez claims the prosecutor improperly: asked the jury to put themselves in the
place of the defendant; made “derogatory” comments about Chavez; made
statements of personal opinion; and made an argument regarding facts not in
evidence. The Nevada Supreme Court held that Chavez could not establish
prejudice because the prosecutor’s comments were not egregious and the evidence
against Chavez was overwhelming. Thus, there was no reasonable probability that
the outcome would have been different had Chavez’s counsel objected. This was
not an unreasonable application of Strickland.
AFFIRMED.

-- 4 of 4 --