Frank Ralph Lapena v. George Grigas; Adam Paul Laxalt

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK RALPH LAPENA,
Petitioner-Appellant,
v.
GEORGE GRIGAS; ADAM PAUL
LAXALT,
Respondents-Appellees.
No. 15-16154
D.C. No.
2:00-cv-00960-RFB-NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted May 16, 2018
San Francisco, California
Before: WALLACE, N.R. SMITH, and FRIEDLAND, Circuit Judges.
Frank LaPena appeals from the district court’s denial of his petition for a
writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253, and we
affirm.1
FILED
JUN 05 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1 We grant LaPena’s Motion to Expand the Record on Appeal.

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1. There was sufficient evidence to convict LaPena. “[A]fter viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Although Weakland was
significantly impeached, he testified that LaPena hired him to kill Hilda Krause,
and aspects of Weakland’s testimony were corroborated by other witnesses: (1)
one of LaPena’s cellmates in prison testified that LaPena admitted he had hired
Weakland to murder Hilda; (2) Weakland’s former wife corroborated various
aspects of the crime, including the fact that the jewelry stolen from the Krause
residence appeared on her dresser the morning after Hilda was murdered; and (3)
Weakland’s accomplice in the robbery corroborated the planning, break in, and
robbery of the Krause residence. Further, evidence regarding the manner of Hilda’s
death was not inconsistent with Weakland’s testimony.
2. Assuming a freestanding innocence claim is viable, LaPena has failed to
meet the burden to “affirmatively prove that he is probably innocent.” Jones v.
Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (quotation marks and citation
omitted). There is no “affirmative[]” evidence that LaPena is innocent. Id. The
physical DNA evidence does not disprove that Weakland did what he said he did,
nor that LaPena hired him to do it. Lastly, the jury had been presented with
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extensive impeachment evidence regarding Weakland before it convicted LaPena.
LaPena has failed to meet his burden to prove he is actually innocent.
3. LaPena has failed to prove he received ineffective assistance of counsel
(IAC).2 “To establish deficient performance, a person challenging a conviction
must show that ‘counsel’s representation fell below an objective standard of
reasonableness.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)). When both AEDPA review
and Strickland review apply, both “highly deferential” standards apply “doubly
so.” Id. at 105 (quotation marks and citation omitted).
First, LaPena’s trial counsel did not render IAC in his impeachment of
Weakland. Under the § 2254(d) standard, even if trial counsel could have further
impeached Weakland, we cannot say that LaPena’s trial counsel rendered deficient
representation by not further impeaching Weakland regarding why he un-recanted
his testimony. Harrington, 562 U.S. at 105 (holding the standard is “whether there
is any reasonable argument that counsel satisfied Strickland’s deferential
standard” (emphasis added)). Weakland was significantly impeached, including
with evidence that Weakland (1) had received a deal from the state to testify
2 LaPena only raises four claims of IAC in his briefing before this court.
Therefore, any other claims are waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999).
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against LaPena, (2) had changed his story multiple times, (3) had been convicted of
perjury, and (4) was considered a “psychopathic liar” by a psychologist. State v.
LaPena, 968 P.2d 750, 755 (Nev. 1998).
Second, it was not unreasonable for the state court to conclude that LaPena
did not receive IAC by his counsel’s failure to procure the testimony of Costanza.
All the evidence that Costanza would have presented was already before the jury
through other witnesses, Constanza told the prosecution that “he had told the police
all he knew years ago,” and LaPena never obtained an affidavit from Costanza
regarding what additional evidence Costanza could provide. Id. at 758-59.
Third, it was not unreasonable for the state court to conclude that LaPena did
not receive IAC through his trial counsel’s alleged failure to have LaPena testify in
his own defense. The Nevada Supreme Court held that “LaPena made an informed,
strategic choice not to testify in the second trial.” Id. at 756. Notably, LaPena
conceded at the state evidentiary hearing that he was aware he could testify and
that his “testimony went poorly at his first trial.” Id. LaPena also admitted that he
discussed testifying with counsel, and his counsel maintained that he wished to
“avoid the ‘expected rigorous and thorough cross-examination,’” which could
likely include testimony about another criminal prosecution. Id.
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Finally, LaPena failed to adequately raise his argument that his trial counsel
provided IAC by failing to explore and develop a connection between Weakland
and Marvin Krause. LaPena raises this issue in his informal brief, but fails to
muster any argument or factual basis for it. Therefore, the issue is abandoned.
Crime Justice & Am., Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017) (“Issues
raised in a brief which are not supported by argument are deemed abandoned.”
(citation omitted)).
4. LaPena fails to raise a constitutional violation in his allegation that the
prosecution violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), by
not disclosing various exculpatory evidence during the grand jury proceedings.
There is no federal right to have exculpatory evidence presented before a grand
jury, United States v. Williams, 504 U.S. 36, 55 (1992); therefore, such a claim
cannot be grounds for a petition for habeas corpus.
5. LaPena failed to exhaust his confrontation claim and, even if we address
the merits, he has failed to demonstrate prejudice. “A petitioner has not satisfied
the exhaustion requirement unless he has fairly presented his claim to the highest
state court.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (per curiam).
LaPena’s argument to the Nevada Supreme Court did not “fairly present[] his
claim.” Id. LaPena’s opening brief at best only vaguely refers to a federal
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constitutional question; his reply brief only cites a state case (which cited a federal
case, regarding bias, not propensity). Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
Cir. 1999) (“[G]eneral appeals to broad constitutional principles, such as due
process, equal protection, and the right to a fair trial, are insufficient to establish
exhaustion.”). Even if we reach the merits of the question, LaPena was not
prejudiced by the district court’s decision to limit Weakland’s cross examination.
As noted supra, Weakland was significantly impeached, and further cross-
examination regarding whether Weakland had a propensity to murder for pleasure
does not change what Weakland testified to and others corroborated.
AFFIRMED.
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