Opinion
CV-22-02012-PHX-ROS (DMF)
09-13-2023
Eleazar Lumumba Boyd, Petitioner, v. Maricopa County Superior Court, et al., Respondents.
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Deborah M, Fine United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 9 at 5)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-02012-PHX-ROS (DMF).
Petitioner Eleazar Lumumba Boyd (“Petitioner”), who is confined in the Arizona State Prison Complex in Buckeye, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on November 22, 2022. (Doc. 1) On December 2, 2022, the Court dismissed the Petition for failure to name the proper Respondent and ordered Petitioner to file an amended petition within thirty days of the Court's Order. (Doc. 4)
The Petition was docketed by the Clerk of Court on November 28, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on November 22, 2022. (Id. at 46) This Report and Recommendation uses November 22, 2022, as the operative filing date of the Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signed, dated, and attested the petition was placed in the prison mailing system).
On December 14, 2022, Petitioner filed an amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 5), a memorandum of points and authorities (Doc. 6), and a supplement to his memorandum consisting of a list of exhibits but with no exhibits attached (Doc. 7). On December 20, 2022, Petitioner filed a motion to expand the record and requested that the Court apply to the Amended Petition ten attachments which Petitioner had previously attached to his November 22, 2022, Petition. (Doc. 8)
See footnote 2, supra.
On January 10, 2023, the Court denied Petitioner's motion to expand the record without prejudice and ordered Respondents to answer the Amended Petition. (Doc. 9 at 4)
On February 21, 2022, Respondents filed their Answer. (Doc. 12) Petitioner did not file a reply despite an extension of time to do so, and the time for reply expired in April 2023. (Doc. 18)
In their Answer, Respondents never cite the Amended Petition (Doc. 5) and repeatedly cite the dismissed and now nonexistent Petition (Doc. 1). (Doc. 12 at 2, 3, 8, 19, 20) An amended petition supersedes the original petition, and after amendment, the original pleading is treated as nonexistent. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
On March 13, 2023, Petitioner filed a motion for Rule 65(1) Notice (Doc. 15) and a motion for a preliminary injunction (Doc. 16). Petitioner's filings followed his notices of change of address (Docs. 13, 14) and sought relief based on a mistaken belief that Respondents had not responded to the Amended Petition (Docs. 15, 16). Respondents filed a response to Petitioner's March 13, 2023, motions reflecting that Respondents had mailed their Answer to Petitioner's old and new addresses. (Doc. 17) On March 20, 2023, the Court denied Petitioner's motions without prejudice, noting that the motions were incorrectly named as seeking Rule 65 preliminary injunctive relief. (Doc. 18) Recognizing that the Court also ordered Petitioner to file a reply in support of the Amended Petition by April 21, 2023. (Id.)
For the reasons set forth below, it is recommended that these proceedings be dismissed and denied with prejudice, the Clerk of Court be directed to terminate this matter, and a certificate of appealability be denied.
I.BACKGROUND
A. Petitioner's Charge, Conviction, and Sentence
i. Events Leading to Prosecution of Petitioner
In its memorandum opinion affirming Petitioner's conviction and sentence in Maricopa County Superior Court case number CR2017-122414-001, the Arizona Court of Appeals summarized the events leading to Petitioner's conviction and sentence in Maricopa County Superior Court case number CR2017-122414-001:
W.J. was unloading groceries from his truck when he saw [Petitioner] about a hundred feet away, shirtless and carrying a knife. [Petitioner] appeared agitated and repeatedly said, “I'm going to kill somebody,” but W.J. could not tell if [Petitioner's] statements were directed at anyone as no one was around. W.J. returned to his apartment and called the police. W.J. then heard yelling, put down the phone, and went outside with a stick.
When W.J. returned outside, he saw [Petitioner] chasing a man. [Petitioner] attempted to stab a nearby man with a knife but missed by a few inches. W.J. yelled, “leave him alone. What's wrong with you,” with [Petitioner] ran toward W.J., yelling, “Do you want some of this? I'll kill you, too.” Although there was a fence separating W.J. and [Petitioner], when [Petitioner] rushed toward W.J., he ran in fear that [Petitioner] might stab him through the fence. W.J. rushed inside and called the police again. W.J. told the dispatcher the events he observed, including that [Petitioner] came after him and that the knife he was carrying was six to seven inches long.
W.J. then got in his truck and searched for [Petitioner]. W.J. eventually saw that the police had [Petitioner] in custody and told police, “That's him, the person that was trying to stab me.” The police did not find a knife on [Petitioner] or in the immediate area.
The State charged [Petitioner] with aggravated assault with a deadly weapon for his actions against W.J. because they involved a deadly weapon, a knife.(Doc. 12-1 at 668)
ii. Maricopa County Superior Court Proceedings
On May 18, 2017, Petitioner was charged by Complaint in Maricopa County Superior Court case number CR2017-122414-001 with aggravated assault, a class 3 felony dangerous offense. (Id. at 3-4) Petitioner was later indicted with the same charge. (Id. at 128, 284, 329, 558, 568-69)
On July 24, 2017, Maricopa County Superior Court Judge Douglas Gerlach held a settlement conference with the prosecutor, Petitioner, and Petitioner's counsel. (Id. at 9- 39) At the conclusion of the settlement conference, Petitioner stated that he was unwilling to sign or accept the offered plea agreement at that time. (Id. at 38) Petitioner also said, “So let's get ready for trial, please.” (Id.)
On September 7, 2017, the trial court held a hearing for submission of competency, accepted a stipulation of competency, and denied Petitioner's motion to change counsel. (Id. at 41-47) At the July 24, 2017, settlement conference and the September 7, 2017, hearing, Petitioner was represented by counsel Kerrie Droban. (Id. at 11, 43)
On May 4, 2018, the trial court began an evidentiary hearing regarding a motion to suppress regarding Petitioner's statements to a police officer prior to being given Miranda warnings. (Id. at 49-97) At the evidentiary hearing, Petitioner was represented by counsel Robert Abernethy of the Office of the Legal Defender. (Id. at 50) During the evidentiary hearing, the state presented witness Phoenix Police Department Officer Sewell, who had responded to the events leading to Petitioner's charge of aggravated assault. (Id. at 54-89) Officer Sewell testified regarding her interactions with Petitioner after his arrest, regarding her recollection of Petitioner's arrest, regarding her interaction with the victim, that she believed Petitioner had been Mirandized before she questioned Petitioner, that she learned Petitioner had not been Mirandized during a subsequent interview with Petitioner's counsel, and that she had asked Petitioner questions while Petitioner was in the hospital following his arrest. (Id.) After conclusion of the hearing, the trial court precluded Petitioner's statements from being used in the state's case in chief because Petitioner was not Mirandized prior to his interview with Officer Sewell. (Id. at 117-19)
The transcript of the remainder of the hearing was not provided as part of the record in these habeas proceedings. (Id. at 89-91)
On November 9, 2018, Maricopa County Superior Court Judge Danielle Viola conducted a second settlement conference. (Id. at 99-143) At the second settlement conference, Petitioner was represented by counsel Corwin Townsend. (Id. at 101) During the settlement conference Petitioner asked about inconsistent statements made by a testifying police officer during grand jury proceedings. (Id. at 105-09) Judge Viola explained grand jury procedures, including that hearsay testimony was permitted and that officers who were not present at the events leading to Petitioner's charge could testify at the grand jury. (Id. at 109-10) Judge Viola explained that Petitioner's previous counsel Kerrie Droban failed to challenge the grand jury and that the time to do so had expired. (Id. at 120-21, 125-29) Judge Viola also explained that the testimony presented to a grand jury could differ from evidence presented at trial but that a grand jury only had to find probable cause, whereas the trial jury would have to find guilt beyond a reasonable doubt. (Id. at 122-24) Judge Viola and Petitioner's counsel Corwin Townsend explained that Petitioner could file a Rule 32 proceeding to challenge previous counsel Kerrie Droban's actions. (Id. at 126-27) Further, Judge Viola explained that challenging the indictment might not have impacted the grand jury decision, that any challenge to the grand jury would be moot if Petitioner were convicted at trial, and that challenging the grand jury proceedings would not ultimately change the outcome of Petitioner's case because Petitioner could only go to trial or enter a plea given the procedural posture of the matter. (Id. at 131-33)
In late 2018, the matter proceeded to a jury trial. During jury selection, the state made a peremptory strike of Juror 8, and Petitioner's counsel Corwin Townsend made a Batson challenge to the state striking Juror 8, asserting that Juror 8 “appeared to be of Hispanic background, a minority group.” (Id. at 280-82) The trial court determined that the state offered a valid, race-neutral reason to strike Juror 8, namely that the prosecutor and court reporter had difficulty hearing Juror 8 and that the prosecutor “was concerned that her lack of assertiveness and her general volume would be a problem throughout the trial.” (Id. at 281-82)
Batson v. Kentucky, 476 U.S. 79 (1986).
During the five-day jury trial, the parties presented three witnesses: the victim of the events leading to the charge against Petitioner and two responding Phoenix Police Department officers, Officer Liu and Officer Sewell. (Id. at 362-469) On direct examination, the victim testified that Petitioner had a metal knife that was 6 to 7 inches long and had a shiny handle and a dull blade. (Id. at 364-66, 403-04) The victim stated that Petitioner attempted to stab another man with the knife; that the victim called 911 and described the events and the knife; and that Petitioner ran toward the victim, held the blade pointed at the victim, and tried to stab at the victim. (Id. at 366, 370-71, 379-80) On cross-examination, the victim testified that he told the 911 operator that Petitioner was attempting to stab other people but that he did not tell the 911 operator or responding police officers how far away Petitioner was from the victim when Petitioner approached the victim with the knife. (Id. at 394-99) The victim testified that he was within 3 to 4 feet of Petitioner and Petitioner's knife, that he could not tell exactly what type of knife Petitioner had, and that police officers did not ask the victim to identify a knife. (Id.) On redirect examination, the victim testified that he had no doubt that Petitioner had a knife and that he told the 911 operator that Petitioner had a knife that was 6 to 7 inches long. (Id. at 403-04)
Officer Liu testified that Petitioner did not have a knife at the time of his arrest, that Officer Liu's police report reflected that Petitioner had no weapon, that Officer Liu understood that the police were looking for someone with a weapon, and that Officer Liu did not search the area of Petitioner's arrest for a weapon. (Id. at 412-17) Officer Sewell testified that the victim stated that he saw Petitioner running with and attempting to stab another person with a knife, that the victim described the knife, and that Officer Sewell looked for a knife with other police officers at the time of Petitioner's arrest. (Id. at 434-37) Officer Sewell stated that Petitioner did not have a knife when he was arrested, that the police never found a knife in the area of Petitioner's arrest, and that the victim was the only person who asserted that Petitioner had a knife. (Id. at 445-47, 453-55, 465)
During Officer Sewell's testimony, Petitioner's counsel Corwin Townsend made a hearsay objection when Officer Sewell began testifying about the victim's statements reflected in Officer Sewell's report. (Id. at 432-33) The prosecutor responded that the questions related to admissible prior consistent statements because Petitioner's counsel had suggested that the victim made up statements. (Id.) The trial court sustained Petitioner's counsel's objection except for questions about the victim's statements reflected in Officer Sewell's report “where there's an allegation that something is made up and [the victim] made a prior consistent statement with that[.]” (Id. at 433) The prosecutor continued examining Officer Sewell, and Petitioner's counsel did not object further. (Id. at 433-41)
On the third day of trial, Petitioner's counsel Corwin Townsend asked for a jury instruction that simple assault was a lesser-included offense of aggravated assault. (Id. at 478-81) The state objected, and the trial court disallowed the lesser-included offense instruction, determining that the evidence did not support the instruction. (Id. at 487-91) On the fifth day of trial, the jury found Petitioner guilty of the aggravated assault charge and found that the state had proven that the offense was a dangerous offense. (Id. at 557-59, 568-69)
On February 1, 2019, at Petitioner's priors and sentencing hearing, the trial court found that Petitioner had five prior felony convictions: aggravated assault, a class six designated felony; endangerment, a class six undesignated felony; two offenses of resisting arrest, a class six felony; and possession or use of dangerous drugs, a class four felony. (Id. at 591-92) Thereafter, the trial court sentenced Petitioner to a presumptive term of 11.25 years' imprisonment with 626 days of presentence credit. (Id. at 596-97)
B. Petitioner's Direct Appeal
Through appointed counsel Mark Dwyer of the Maricopa County Public Defender's Office (“appellate counsel”), Petitioner raised three claims in a direct appeal: (1) that the trial court erred in denying Petitioner's Batson challenge; (2) that the trial court abused its discretion in failing to give an instruction that simple assault was a lesser-included offense of aggravated assault; and (3) that the prosecutor committed misconduct by ignoring the trial court's evidentiary ruling and repeatedly asking questions that called for inappropriate hearsay. (Id. at 606-29) The state filed a response. (Id. at 631-63) Through appellate counsel, Petitioner filed a notice of election not to file a reply brief. (Id. at 665).
On January 9, 2020, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. (Id. at 667-72) In doing so, the court of appeals wrote:
I. Batson Challenge
During jury selection, [Petitioner] unsuccessfully challenged the State's peremptory strike of prospective Juror 8, a woman who appeared to be Hispanic.
The Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from striking prospective jurors solely on account of their race. Batson, 476 U.S. at 89. “A Batson challenge proceeds in three steps: (1) the party challenging the strikes must make a prima facie showing of discrimination; (2) the striking party must provide a race-neutral reason for the strike; and (3) if a race-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful racial discrimination.” State v. Bustamante, 229 Ariz. 256, 260, ¶ 14 (App. 2012) (citation omitted). When reviewing a superior court's ruling on a Batson challenge, we review de novo the court's application of the law but defer to its findings of fact unless clearly erroneous. State v. Newell, 212 Ariz. 389, 400-01, ¶ 52 (2006).
After [Petitioner] challenged the State's peremptory strike of Juror 8, the prosecutor responded that she struck the juror because she had trouble hearing the juror, and “was concerned that her lack of assertiveness and her general volume would be a problem throughout the trial.” [Petitioner] replied that the State did not similarly strike other jurors who spoke in a low tone of voice and that there is no need for the juror to speak loudly because the juror is not a witness. Finding the State provided a race-neutral reason regarding the juror's potential lack of assertiveness in jury deliberations, the court denied [Petitioner's] Batson challenge.
As part of the three-step analysis required by Batson, we first determine whether the party challenging the strikes has made a prima facie showing of discrimination. Bustamante, 229 Ariz. at 260, ¶ 14. That first step is completed upon a request by the superior court that the State explain the peremptory strikes. State v. Trostle, 191 Ariz. 4, 12 (1997). Here, the court asked the State to explain its peremptory strike of Juror 8.
The State provided a race-neutral reason for the strike when it avowed that Juror 8 was struck due to her low volume in speaking and general concerns regarding her potential lack of assertiveness in jury deliberations. On its face, this reason is race-neutral. Because the State offered a race-neutral explanation for its strike of Juror 8, the second part of the Batson analysis, the superior court was required to determine whether [Petitioner] had carried his burden of proving purposeful racial discrimination. “This third step is fact intensive and will turn on issues of credibility, which the trial court is in a better position to assess than is this [c]ourt.” Newell, 212 Ariz. at 401, ¶ 54.
Boyd argues that the State's explanation is weak because Juror 8 was heard each time she spoke, and no one asked her to raise her voice. Although a request to speak more loudly would be indicative that someone is soft-spoken, it does not follow that one must be asked to raise one's voice in order to be considered soft-spoken or unassertive. And the explanation, here, is not that the prosecutor could not hear the juror at all, it was that she had trouble hearing the juror. More importantly, the prosecutor expressed a concern that Juror 8 might not be sufficiently assertive during jury deliberations, deferring to other jurors. The superior court is in the best position to observe the demeanor, body language, assertiveness and volume of a juror when speaking. These are all characteristics not reflected on the written record but easily observed by the superior court. Consistent with State v. Decker, 239 Ariz. 29, 31, ¶ 5 (App. 2016), and according deference to the court's first-hand assessment of the juror's demeanor and tone, as well as the prosecutor's credibility, Boyd has not established that the superior court abused its discretion by denying his Batson challenge.
II. Lesser-Included Offense Instruction on Simple Assault
[Petitioner] argues the court erred in denying his requested simple assault instruction because, given the fact that the police never recovered a knife and that [Petitioner] yelled, “Do you want some of this? I'll kill you, too,” the jury might have believed [Petitioner] did not use a deadly weapon but still threatened W.J.
“We deem evidence sufficient to require a lesser-included offense instruction if two conditions are met. The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense.” State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006). However, “[t]he law does not require or even permit” instructions on lesser-included offenses based on the possibility “that the jury might simply disbelieve the state's evidence on one element of the crime.” State v. Schroeder, 95 Ariz. 255, 259 (1964). “This court reviews a trial court's denial of a requested jury instruction for an abuse of discretion.” Wall, 212 Ariz. at 3, ¶ 12.
Here, the State presented evidence that [Petitioner] used a knife when he placed W.J. in reasonable apprehension of physical injury. W.J. testified that [Petitioner] came up to him with a knife and described the knife in detail. W.J.'s phone call to the police, which was played to the jury, established the same. While counsel for [Petitioner] argued that the jury should disbelieve W.J. and that [Petitioner] did not use a knife, statements by counsel are not evidence. See State v. Goudeau, 239 Ariz. 421, 449, ¶ 88 (2016) (statements and arguments by counsel are not evidence). [Petitioner] did not testify, and there was no evidence presented at trial from which the jurors could conclude that [Petitioner] assaulted W.J. without a weapon. A simple assault instruction is not warranted simply because the jury may hypothetically disbelieve the evidence that a deadly weapon was used. See Schroeder, 95 Ariz. at 259. Accordingly, the court properly denied [Petitioner's] requested instruction on simple assault.
III. Prosecutorial Misconduct
[Petitioner] argues, without specificity, that the prosecutor engaged in misconduct when she attempted to elicit hearsay testimony despite the court's ruling sustaining the defense's hearsay objection.
“To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (citation omitted). “A conviction will be reversed for prosecutorial misconduct only if ‘(1) the prosecutor committed misconduct and (2) a reasonable likelihood exists that the prosecutor's misconduct could have affected the verdict.'” Goudeau, 239 Ariz. at 465, ¶ 193 (citation omitted). [Petitioner] does not state with specificity what questions were improperly asked, what responses were given to those questions, and how that evidence could have affected the verdict.
Our independent review of the record reflects that at trial, [Petitioner] entered a hearsay objection to the arresting officer's testimony regarding W.J.'s statements. The prosecutor argued the statements were not hearsay because they were prior consistent statements made by the victim, W.J., and they
were offered to rehabilitate W.J.'s credibility after the defense, at cross-examination, suggested that W.J. did not make certain statements to the officer. The court ruled that the State could not elicit testimony from the officer in the form of everything the officer had included in her report. Instead, the State was permitted to offer W.J.'s prior consistent statement which the defense suggested W.J. never made. The prosecutor then asked the officer specific questions about what W.J. had told her, instead of just having the officer testify to what was in the police report.
[Petitioner] never objected to this subsequent testimony, nor raised issues of prosecutorial misconduct. Because [Petitioner] failed to clearly articulate the basis for his claim of prosecutorial misconduct, failed to develop the argument, and to support it with legal authority, we do not address it further. See State v. Carver, 160 Ariz. 167, 175 (1989).(Id. at 669-72)
According to the superior court's later ruling in post-conviction relief (“PCR”) proceedings, Petitioner did not file a petition for review to the Arizona Supreme Court, and the court of appeals issued its mandate on June 15, 2020. (Id. at 724)
In their Answer, Respondents cite Petitioner's dismissed Petition (Doc. 1) and state that Petitioner filed but voluntarily dismissed a petition for review to the Arizona Supreme Court and did not file a petition for writ of certiorari in the United States Supreme Court. (Doc. 12 at 2) Petitioner's voluntarily dismissed petition for review to the Arizona Supreme Court is not in the record before the Court. An amended petition supersedes the original petition, and after amendment, the original pleading is treated as nonexistent. Ferdik v. Bonzelet, 963 F.2d at 1262; Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). Nor is the mandate of the Arizona Court of Appeals in the record before the Court.
C. Petitioner's Post-Conviction Relief (“PCR”) Proceedings
On February 1, 2019, prior to the conclusion of his direct appeal in the Arizona Court of Appeals, Petitioner filed a pro se PCR notice in the superior court. (Id. at 602-04) Through counsel Stephen Garcia (“PCR counsel”), on December 20, 2020, Petitioner filed a PCR petition in the superior court. (Id. at 674-703) Petitioner argued in his PCR petition that: (1) Petitioner's right to a legitimately informed, independent grand jury was violated when the state presented material misrepresentations to the grand jury, and that counsel Kerrie Droban's failure to challenge the grand jury proceeding constituted ineffective assistance of counsel (“IAC”), and (2) Petitioner's rights to an impartial and fair trial were violated due to the state's Batson violation. (Id. at 686-700) The state filed a response in opposition (Id. at 705-13), and Petitioner filed a reply (Id. at 715-20).
The prison mailbox rule applies to Petitioner's PCR notice. Melville, 68 F.4th at 1159 (“‘We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).”). Petitioner's PCR notice was signed and dated on February 1, 2019. (Doc. 12-1 at 604)
On June 11, 2021, the superior court treated Petitioner's PCR petition as timely but dismissed Petitioner's PCR petition for failure to present “any non-precluded colorable PCR claims that would entitle [Petitioner] to relief.” (Id. at 723-28) In doing so, the superior court stated:
The filing date is the operative date of the superior court's ruling. See Ariz. R. Crim. P. 1.10(c) (see former Ariz. R. Crim. P. 1.3(c)).
[Petitioner] asserts two PCR claims: (1) [Petitioner's] trial counsel provided ineffective assistance, by failing to challenge the State's presentation of the case to the grand jury; and (2) [Petitioner's] right to a fair and impartial jury was infringed by the State's striking of Juror No. 8 and the Court's denial of [Petitioner's] Batson challenge. The State contends that both claims should be summarily dismissed, because they are precluded and/or fail to state a colorable claim. [Petitioner] denies that his claims are subject to summary dismissal and asks the Court to set an evidentiary hearing.
Non-precluded PCR claims are subject to summary dismissal, if the facts alleged in the petition would not have probably changed the verdict or sentence. See State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016). The Court is not required to hold an evidentiary hearing on “mere generalizations and unsubstantiated claims.” State v. Borbon, 146 Ariz. 392, 299 (1985). A defendant must do more than contradict what the record plainly shows to state a colorable claim. See State v. Jenkins, 193 Ariz. 115, 120 ¶ 15 (App. 1998). To satisfy his burden of proving the allegations by a preponderance of the evidence, a defendant must present evidence of “a demonstrable reality rather than a matter of speculation.” State v. McDaniel, 136 Ariz. 188, 198 (1983).
1. Grand Jury Proceedings
[Petitioner's] first PCR claim is that his attorney provided ineffective assistance of counsel (“IAC”) by failing to challenge the grand jury proceedings. IAC claims must be brought in a PCR proceeding and cannot be raised on direct appeal. State v. Spreitz, 202 Ariz. 1, 3 ¶ 9 (2002). As such, [Petitioner's] IAC claim is not precluded.
To prevail on his IAC claim, [Petitioner] must prove that his counsel's performance was deficient and, as a result of the deficient performance, [Petitioner] was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064 (1984); see also State v. Santanna, 153 Ariz. 147, 149 (1987) (“In order to prevail on an ineffective assistance-of-counsel claim, a defendant must establish that his counsel's performance was deficient, . . . and that his counsel's deficient performance prejudiced his defense.”) (citations omitted). Whether [Petitioner] has satisfied his burden of showing a colorable IAC claim turns on whether he can show that he was
prejudiced by his trial counsel's alleged deficient performance.
State v. Canaday, 117 Ariz. 572 (1977) is instructive on the issue of prejudice when a defendant has been denied effective assistance of counsel in challenging the grand jury's probable cause finding. There, the defendant was convicted of grand theft and burglary following a jury trial. The sole issue on appeal was whether the conviction should be reversed because the justice of the peace conducted the preliminary hearing in the absence of defense counsel. The defendant argued that his lack of counsel at the preliminary hearing violated his Sixth Amendment right to counsel. The Court of Appeals agreed that the defendant's right to counsel was violated but held that the constitutional violation was harmless beyond a reasonable doubt. Id. at 574. In reaching this conclusion, the Court of Appeals held that “[t]he possibility that counsel would have detected preclusive flaws in the State's probable-cause showing is for all practical purposes mooted by the trial where the State produced evidence satisfying the jury of the [defendant's] guilty beyond a reasonable doubt.” Id. (quoting Coleman v. Alabama, 399 U.S. 1, 18, 90 S.Ct. 1999, 2008 (1970) (White, J., concurring)).
State v. Neese, 126 Ariz. 499 (1980) also is instructive on this issue. There, the defendants were convicted after trial of conspiracy to violate Arizona's marijuana laws. On appeal, they contended that they were entitled to a redetermination of probable cause due to an off-the-record conversation between a witness and a grand juror during the grand jury proceedings. The Court of Appeals agreed that the off-the-record conversations were improper and disapproved of the trial court's denial of the motion for redetermination of probable cause. Id. at 502. Nevertheless, the appellate court held that reversal of the conviction was not required, stating:
The purpose of a preliminary hearing and a grand jury proceeding is the same. They are to determine whether there is probable cause to believe the individual committed an offense. Prior to trial the question of whether probable cause exists is an open one, however, after a full scale trial in which a jury determines guilty beyond a reasonable doubt the question is closed.
Id. at 502-03 (citations omitted).
The logic of Canaday and Neese applies here. A jury found [Petitioner] guilty of the charged offense beyond a reasonable doubt. The jury's finding moots any flaws in the State's probable cause showing during the grand jury proceedings. As such, even if we assume that [Petitioner's] trial counsel failed to provide effective assistance of counsel, [Petitioner] cannot meet his burden of showing prejudice from his trial counsel's decision not to file a motion for a redetermination of probable cause. Accordingly, the Court determines that [Petitioner's] IAC claim is not colorable.
2. Batson Challenge
[Petitioner's] second PCR claim relates to his unsuccessful Batson challenge during jury selection. The State contends that this claim is precluded under Rule 32.2(a)(2), because the Batson issue was raised and adjudicated on appeal. [Petitioner] concedes that the Court of Appeals considered the Batson issue but argues that “they did not consider the full issue.” (Reply at 4:2).
Rule 32.2(a)(2) precludes a defendant from raising any constitutional issue that was “finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding”. The Court of Appeals unquestionably adjudicated the merits of [Petitioner's] Batson challenge on appeal. See State v. Boyd, No. 1 CA-CR 10-0060, 2020 WL 113900 at *1-2 ¶¶ 7-12 (Jan. 9, 2020 mem. dec.). And, despite [Petitioner's] contention that the appellate court “did not consider the full issue”, the appellate court addressed the identical issues raised in the Petition, held that this Court did not abuse its discretion in denying [Petitioner's] Batson challenge and left nothing further to be done on the Batson issue. As such, the Batson issue was finally adjudicated on the merits in [Petitioner's] direct appeal.
Finally, [Petitioner's] argument that his Batson challenge is not precluded because “[t]here has never been any knowing, voluntary and intelligent waiver by [Petitioner] in any previous collateral proceeding under Rule 32.2(a)(3)” (Petition at 1) misses the mark. Preclusion in this case is not under Rule 32.2(a)(3). Rather, as set forth above, [Petitioner's] Batson PCR claim is precluded under Rule 32.2(a)(2). See State v. Leeman, 250 Ariz. 251, 255-60 ¶ 13 (App. 2020) (“Accordingly, a challenge of the legality of Leeman's consecutive sentences is arguably precluded because it was actually adjudicated in appeal. See Ariz. R. Crim. P. 32.2(a)(2), (b) (claims for relief based on Rule 32.1(b) through (h) subject to preclusion if finally adjudicated on merits on appeal or in previous post-conviction proceeding).”).1 Accordingly, the Court determines that [Petitioner's] Batson PCR claim is precluded.
1 In Leeman, the Court described the preclusion under Rule 32.2(a)(2) as “arguable”, because “Leeman did not raise on appeal the discrete argument she now raises concerning her sentences”. Id. Here, unlike Leeman, there is no ambiguity that preclusion under Rule 32.2(a)(2) applies, because [Petitioner] is raising in this PCR the identical issue already adjudicated on appeal.(Id. at 725-27)
On September 15, 2021, Petitioner filed a pro se petition for review in the Arizona Court of Appeals raising the same claims as raised previously in his PCR petition. (Id. at 730-73) The state filed a response to Petitioner's pro se petition for review. (Id. at 811-15)
The record contains both a pro se petition for review filed by Petitioner (Doc. 12-1 at 730-73) as well as a petition for review filed by counsel for Petitioner (Id. at 775-809). The state responded to Petitioner's pro se petition, stating that the court of appeals had designated Petitioner's pro se filing as the operative petition for review. (Id. at 811-15)
On January 20, 2022, the court of appeals granted review of Petitioner's petition for review but denied relief, finding that Petitioner had not shown that the superior court abused its discretion in denying Petitioner's PCR petition. (Id. at 817-18)
In their Answer, Respondents improperly cite Petitioner's dismissed Petition (Doc. 1) and state that in December 7, 2022, the Arizona Supreme Court denied review of Petitioner's petition for review in his PCR proceedings. (Doc. 12 at 3) The Arizona Supreme Court's order denying review is not in the record before the Court. Further, the electronic docket for case number CR2017-122414-001 maintained by the superior court does not reflect a December 7, 2022, order from the Arizona Supreme Court. The superior court's electronic docket does reflect a March 7, 2022, order from the Arizona Supreme Court. See https://perma.cc/UQ4A-TBWV (last accessed August 28, 2023).
II.PETITIONER'S HABEAS CLAIMS
Petitioner raises four grounds for relief in his December 14, 2022, Amended Petition. (Doc. 5) In Ground One, Petitioner asserts (a) that the state made material misrepresentations to the grand jury, violating Petitioner's right to a “legitimately informed independent grand jury[,]” and (b) that Petitioner's counsel Kerrie Droban's subsequent failure to challenge the grand jury proceeding resulted in IAC. (Doc. 5 at 6-12; Doc. 6 at 3-10) In Ground One (a), Petitioner asserts that he was not given Miranda warnings prior to making statements presented to the grand jury, that no independent witnesses observed Petitioner with a knife during the events leading to the charge against Petitioner, that the police officer who testified at the grand jury mentioned Petitioner's alleged substance use, and that Petitioner had stated to the responding police officer that he was defending himself with a knife. (Id.) In Ground Two, Petitioner asserts that the state violated Batson during jury selection by striking Juror 8, who appeared to be Hispanic, and that in doing so, the state violated Petitioner's right to an impartial jury and right to a fair trial. (Doc. 5 at 13-15; Doc. 6 at 11-12) Petitioner argues that the state did not provide a valid, race-neutral reason to strike Juror 8, namely that Juror 8 was difficult to hear and would not be assertive during jury deliberations. (Id.) In Ground Three, Petitioner asserts that the trial court abused its discretion by failing to give a jury instruction that simple assault was a lesser-included offense of aggravated assault. (Doc. 5 at 16; Doc. 6 at 12) In Ground Four, Petitioner asserts that the prosecutor committed misconduct by “ignoring the court's evidentiary ruling and repeatedly asking questions calling for inappropriate hearsay” during the state's examination of Phoenix Police Department Officer Sewell. (Doc. 5 at 17-18; Doc. 6 at 12-13)
In their Answer, Respondents argue that Petitioner's Ground Four claim is procedurally defaulted without excuse and that Petitioner's Ground One (a) claim is non- cognizable in these proceedings insofar as Petitioner challenges the state court grand jury proceedings. (Doc. 12 at 8-11, 13, footnote 4) Respondents further argue that Petitioner is not entitled to relief on the merits of Grounds One (b), Ground Two, and Ground Three. (Id. at 11-22)
In their Answer, Respondents do not cite the Amended Petition (Doc. 5) and instead repeatedly cite the dismissed and now nonexistent Petition (Doc. 1). (Doc. 12 at 2, 3, 8, 19, 20) An amended petition supersedes the original petition, and after amendment, the original pleading is treated as nonexistent. Ferdik v. Bonzelet, 963 F.2d at 1262. Nevertheless, Respondents address in their Answer all of Petitioner's claims in his Amended Petition, allowing the Court to proceed with this Report and Recommendation.
Petitioner did not file a reply in support of the Amended Petition, and the time to do so expired in late April 2023.
III.PROCEDURAL DEFAULT
Respondents assert that Petitioner's Ground Four claim regarding prosecutorial misconduct is procedurally defaulted without excuse. (Doc. 12 at 3-11)
A. Legal Framework
1. Exhaustion
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts … or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
2. Procedural Default
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies.
3. Excuse for Procedural Default
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S.614, 623 (1998); Jaramillo, 340 F.3d at 882-83. Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee, 653 F.3d at 945; McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway, 223 F.3d at 990 (citing Calderon, 523 U.S. at 559).
B.Ground Four of the Amended Petition is Unexhausted and Procedurally Defaulted
In Ground Four of the Amended Petition, Petitioner alleges that the prosecutor committed misconduct by “ignoring the court's evidentiary ruling and repeatedly asking questions calling for inappropriate hearsay.” (Doc. 5 at 17-18; Doc. 6 at 12-13) Respondents assert that Petitioner did not exhaust his Ground Four claim because he did not present the legal or factual basis for his Ground Four claim to either the state trial court or court of appeals. (Doc. 12 at 8-10)
During Petitioner's trial, Petitioner's counsel Corwin Townsend objected to hearsay when Officer Sewell began testifying about the victim's statements in Officer Sewell's report. (Doc. 12-1 at 432-33) The prosecutor asserted that the questions related to admissible prior consistent statements because Petitioner's counsel had previously suggested that the victim made up statements. (Id.) The trial court sustained Petitioner's counsel's objection but allowed the prosecutor to ask questions “where there's an allegation that something is made up and [the victim] made a prior consistent statement with that[.]” (Id. at 433) The prosecutor continued examining Officer Sewell, and Petitioner's counsel did not object further. (Id. at 433-41)
Respondents assert that Petitioner never raised prosecutorial misconduct in the trial court; that Petitioner's counsel at trial did not object to the prosecutor's questioning following the trial court's ruling on Petitioner's counsel's objection; that Petitioner did not cite the federal due process clause or relevant cases in his direct appeal; and that Petitioner “did not attempt to explain why he believed that the prosecutor's questions were not admissible as prior consistent statements[,]” leading the court of appeals to decline to address Petitioner's claim of prosecutorial misconduct due to Petitioner's failure to develop such a claim. (Doc. 12 at 8-10)
During Petitioner's direct appeal of his conviction and sentence in the court of appeals, Petitioner's appellate counsel raised a claim on Petitioner's behalf that “the prosecutor committed misconduct by ignoring the court's evidentiary ruling and repeatedly asking questions calling for inappropriate hearsay.” (Doc. 12-1 at 626-28) Petitioner's appellate counsel asserted that the prosecutor asked sixteen questions “designed to elicit hearsay” despite the trial court sustaining the objection of Petitioner's counsel at trial, Corwin Townsend. (Id. at 627) Petitioner's appellate counsel further asserted that “[t]he defense objection sufficiently put the court on notice that there was a problem[.]” (Id.) In addressing Petitioner's claim of prosecutorial misconduct, the court of appeals observed that:
[Petitioner] does not state with specificity what questions were improperly asked, what responses were given to those questions, and how that evidence could have affected the verdict.
Our independent review of the record reflects that at trial, [Petitioner] entered a hearsay objection to the arresting officer's testimony regarding W.J.'s
statements. The prosecutor argued the statements were not hearsay because they were prior consistent statements made by the victim, W.J., and they were offered to rehabilitate W.J.'s credibility after the defense, at cross-examination, suggested that W.J. did not make certain statements to the officer. The court ruled that the State could not elicit testimony from the officer in the form of everything the officer had included in her report. Instead, the State was permitted to offer W.J.'s prior consistent statement which the defense suggested W.J. never made. The prosecutor then asked the officer specific questions about what W.J. had told her, instead of just having the officer testify to what was in the police report.
[Petitioner] never objected to this subsequent testimony, nor raised issues of prosecutorial misconduct. Because [Petitioner] failed to clearly articulate the basis for his claim of prosecutorial misconduct, failed to develop the argument, and to support it with legal authority, we do not address it further. See State v. Carver, 160 Ariz. 167, 175 (1989).(Id. at 671-72)
In Petitioner's opening brief in the court of appeals in the direct appeal of his conviction, Petitioner did not cite federal law or the United States Constitution in support of his prosecutorial misconduct claim. (See id. at 626-28) It is not sufficient to present to the state courts “all the facts necessary to support the federal claim” or to make a “somewhat similar state law claim[.]” Anderson, 459 U.S. at 6. In his direct appeal in the court of appeals, Petitioner cited only Arizona state cases and failed to “make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law[.]” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). Moreover, the Arizona state law cases Petitioner cited in his direct appeal did not analyze federal constitutional issues. See Peterson v. Lampert, 319 F.3d 1153, 1158-59 (9th Cir. 2003) (citation of “state cases analyzing federal constitutional claims” sufficient to exhaust). Because Petitioner failed to present the federal legal basis for his Ground Four claim to the court of appeals, Petitioner's Ground Four claim of prosecutorial misconduct was not fairly presented to the state courts. See McFadden, 399 F.3d at 999; see also Casey, 386 F.3d at 911-15 (prosecutorial misconduct claim not fairly presented to state court where petitioner only asserted deprivation of a fair trial and did not cite federal law). Accordingly, Petitioner's Ground Four claim was not properly exhausted for purposes of federal habeas review.
Petitioner's Ground Four claim is unexhausted and implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to assert such a claim. See Ariz. R. Crim. P. 32.2(a)(2) (defendant precluded from relief pursuant to Rule 32.1(a) on ground finally adjudicated on the merits in an appeal or previous PCR proceeding); Ariz. R. Crim. P. 32.2(a)(3) (a defendant is precluded from relief pursuant to Rule 32.1(a) that was waived at trial, on appeal, or in previous PCR proceeding). Petitioner does not argue that he is able to return to state court to exhaust his claims, nor does the record support such an argument.
Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The italicized language was added to the rule in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See Id. Petitioner does not assert a violation of these rights.
Accordingly, Petitioner's Ground Four claim is procedurally defaulted.
C. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default of Ground Four
To excuse the procedural default of Ground Four, Petitioner bears the burden of establishing either (1) both cause and actual prejudice; or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.
1. Cause and Prejudice Not Established
In his Amended Petition, Petitioner does not assert that any “objective factor external to the defense” prevented him from asserting his Ground Four claim in state court. Coleman, 501 U.S. at 753. Although Petitioner raised the factual basis for his Ground Four claim in state court, Petitioner failed to present a federal basis for his Ground Four claim. Petitioner does not explain his failure to present a federal basis for his Ground Four claim in his direct appeal, nor does he assert that he could have done so absent some external factor. Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of Ground Four of the Amended Petition.
2. Miscarriage of Justice/Actual Innocence Standard Not Met
As set forth above, to meet the miscarriage of justice/actual innocence exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). Petitioner fails to meet this burden.
Petitioner does not present “new reliable evidence[,]” Schlup, 513 U.S. at 324, that would prevent any reasonable jury from convicting him. See McQuiggin, 569 U.S. at 399. Indeed, Petitioner does not include any attachments with the Amended Petition that are “new reliable evidence” or would support a finding of actual innocence. Schlup, 513 U.S. at 324. With his Amended Petition, Petitioner attached a memorandum of points and authorities in which Petitioner reasserts his claims in the Amended Petition and recounts the relevant factual background of trial court proceedings. (Doc. 6) Although Petitioner also attached an appendix to the Amended Petition listing various exhibits, Petitioner did not file any exhibits with his Amended Petition. (Doc. 7) In denying Petitioner's motion to expand the record to include exhibits that were not filed with the Amended Petition, the Court stated that Petitioner could renew his motion to expand the record after Respondents filed their Answer and associated record, but Petitioner did not renew his motion. (See Doc. 9 at 2)
Further, Petitioner does not argue in the Amended Petition that he is actually innocent. Although Petitioner asserts in the Amended Petition that the trial jury may have reached different conclusions if the trial court had allowed a lesser-included offense instruction, a petitioner must show that he “‘is innocent of the charge for which he [is] incarcerated,' as opposed to legal innocence as a result of legal error.” Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2002). Petitioner's argument that the trial court erred in failing to provide a lesser-included offense instruction asserts only legal innocence, not factual innocence. Such an assertion does not establish actual innocence. See, e.g., Burleson v. California Dept. of Corrections and Rehabilitation, 2009 WL 2941516, at *4 (N.D. Cal. Sept. 10, 2009) (concession of guilt of lesser-included offense insufficient for claim of actual innocence); Pierce v. Trimble, 2013 WL 5708668, at *1-3 (E.D. Cal. Oct. 15, 2013) (actual innocence claim unavailable where petitioner asserted guilt for a lesser-included offense). Further, Petitioner does not show that if the trial court had given an instruction for a lesser-included offense of simple assault, the trial jury would have convicted Petitioner only of simple assault instead of aggravated assault.
On this record, the miscarriage of justice/actual innocence exception to procedural default does not apply.
For the reasons discussed above, Petitioner's Ground Four claim is procedurally defaulted without excuse.
IV.GROUND ONE (a) OF THE AMENDED PETITION CHALLENGING THE GRAND JURY PROCEEDINGS IS NON-COGNIZABLE
In Ground One (a) of the Amended Petition, Petitioner asserts that the state made material misrepresentations and prejudicial statements during the grand jury proceedings, violating Petitioner's right to a “legitimately informed independent grand jury.” (Doc. 5 at 6-12; Doc. 6 at 3-10) Specifically, Petitioner asserts that he was not given Miranda warnings prior to making statements presented to the grand jury, that no independent witnesses observed Petitioner with a knife during the events leading to the charge against Petitioner, that the police officer who testified at the grand jury mentioned Petitioner's alleged substance use, and that Petitioner had stated to the responding police officer that he was defending himself with a knife. (Doc. 5 at 6-12) Respondents assert that Petitioner's Ground One (a) claim is non-cognizable insofar as Petitioner challenges the grand jury proceedings. (Doc. 12 at 13, footnote 4)
As Respondents correctly argue, state court criminal defendants do not have a right to prosecution by the indictment of a grand jury. See Albright v. Oliver, 510 U.S. 266, 272 (1994) (citing Hurtado v. California, 110 U.S. 516 (1884)); see also Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972) (indictment by grand jury not due process right guaranteed to state defendants by Fourteenth Amendment). The “Fifth Amendment right to presentment or indictment by a grand jury […] has not been incorporated into the Fourteenth Amendment so as to apply against the states.” Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007). Petitioner cannot challenge the grand jury proceedings in case number CR2017-122414-001 because Petitioner did not have a federal right to a grand jury indictment in state court. See Curtis v. Ryan, 2021 WL 4483174, at *13 (D. Ariz. June 25, 2021) (no cognizable claim where petitioner alleged state misrepresented evidence to grand jury) (adopted at 2021 WL 4596465, at *1 (D. Ariz. Oct. 6, 2021)); Murphy-Richardson v. Maricopa County Superior Court, 2021 WL 5890011, at *15 (D. Ariz. Nov. 17, 2021) (claims challenging right to counsel and right to present defense at grand jury proceedings not cognizable) (adopted at 2021 WL 5882627, at *1 (D. Ariz. Dec. 13, 2021)). Accordingly, Petitioner's Ground One (a) claim in which Petitioner challenges the state court grand jury proceedings is not cognizable in these federal habeas proceedings.
V.MERITS
A.28 U.S.C. § 2254 - Legal Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates that adjudication of the claim either “(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 (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.” 28 U.S.C. § 2254(d). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to Section 2254(d). White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, __ U.S. __, 138 S.Ct. 1188, 1192 (2018)).
Under the “unreasonable application” prong of Section 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under Section 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to Section 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Regarding Section 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under Section 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.
The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” Section 2254(e)(1). The Supreme Court has not defined the precise relationship between Section 2254(d)(2) and Section 2254(e)(1), but has clarified “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).
B. Discussion
1. Ground One (b)
In Ground One (b) of the Amended Petition, Petitioner asserts that his counsel Kerrie Droban's failure to challenge the grand jury proceeding resulted in IAC. (Doc. 5 at 6-12; Doc. 6 at 3-10) Petitioner argues that counsel Kerrie Droban failed to object to the grand jury's probable cause finding within the forty-five day deadline to do so and that counsel Kerrie Droban did not request an extension to object. (Doc. 5 at 6) Petitioner asserts that after Kerrie Droban was withdrawn as Petitioner's counsel, his subsequent counsel Robert Abernethy was unable to challenge the grand jury because the deadline to do so had expired. (Id.) Petitioner asserts that counsel Kerrie Droban also failed to request grand jury transcripts and that if Petitioner had the opportunity to challenge the misrepresentations to the grand jury, the grand jury “could have” and “likely would have” made a different decision, resulting in prejudice to Petitioner. (Id. at 11-12)
In their Answer to the Amended Petition, Respondents argue that Petitioner's Ground One (b) claim is meritless because there was “no reason to believe the prosecution would not have re-indicted” Petitioner if Petitioner's counsel had obtained a grand jury remand. (Doc. 12 at 15-16) Further, because Petitioner was found guilty beyond a reasonable doubt following a jury trial, Respondents assert that the state had enough evidence to obtain a new grand jury indictment even if Petitioner's counsel had obtained a grand jury remand. (Id.)
In providing the last reasoned decision on this issue during Petitioner's PCR proceedings, the superior court stated:
[Petitioner's] first PCR claim is that his attorney provided ineffective assistance of counsel (“IAC”) by failing to challenge the grand jury proceedings. IAC claims must be brought in a PCR proceeding and cannot be raised on direct appeal. State v. Spreitz, 202 Ariz. 1, 3 ¶ 9 (2002). As such, [Petitioner's] IAC claim is not precluded.
To prevail on his IAC claim, [Petitioner] must prove that his counsel's performance was deficient and, as a result of the deficient performance, [Petitioner] was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064 (1984); see also State v. Santanna, 153 Ariz. 147, 149 (1987) (“In order to prevail on an ineffective assistance-of-counsel claim, a defendant must establish that his counsel's performance was deficient, . . . and that his counsel's deficient performance prejudiced his defense.”) (citations omitted). Whether [Petitioner] has satisfied his burden of showing a colorable IAC claim turns on whether he can show that he was prejudiced by his trial counsel's alleged deficient performance.
State v. Canaday, 117 Ariz. 572 (1977) is instructive on the issue of prejudice when a defendant has been denied effective assistance of counsel in challenging the grand jury's probable cause finding. There, the defendant was convicted of grand theft and burglary following a jury trial. The sole issue on appeal was whether the conviction should be reversed because the justice of the peace conducted the preliminary hearing in the absence of defense counsel. The defendant argued that his lack of counsel at the preliminary hearing violated his Sixth Amendment right to counsel. The Court of Appeals agreed that the defendant's right to counsel was violated but held that the constitutional violation was harmless beyond a reasonable doubt. Id. at 574. In reaching this conclusion, the Court of Appeals held that “[t]he possibility that counsel would have detected preclusive flaws in the State's probable-cause showing is for all practical purposes mooted by the trial where the State produced evidence satisfying the jury of the [defendant's] guilty beyond a reasonable doubt.” Id. (quoting Coleman v. Alabama, 399 U.S. 1, 18, 90 S.Ct. 1999, 2008 (1970) (White, J., concurring)).
State v. Neese, 126 Ariz. 499 (1980) also is instructive on this issue. There, the defendants were convicted after trial of conspiracy to violate Arizona's marijuana laws. On appeal, they contended that they were entitled to a redetermination of probable cause due to an off-the-record conversation between a witness and a grand juror during the grand jury proceedings. The Court of Appeals agreed that the off-the-record conversations were improper and disapproved of the trial court's denial of the motion for redetermination of probable cause. Id. at 502. Nevertheless, the appellate court held that reversal of the conviction was not required, stating:
The purpose of a preliminary hearing and a grand jury proceeding is the same. They are to determine whether there is probable cause to believe the individual committed an offense. Prior to trial the question of whether probable cause exists is an open one, however, after a full scale trial in which a jury determines guilty beyond a reasonable doubt the question is closed.
Id. at 502-03 (citations omitted).
The logic of Canaday and Neese applies here. A jury found [Petitioner] guilty of the charged offense beyond a reasonable doubt. The jury's finding moots any flaws in the State's probable cause showing during the grand jury proceedings. As such, even if we assume that [Petitioner's] trial counsel failed to provide effective assistance of counsel, [Petitioner] cannot meet his burden of showing prejudice from his trial counsel's decision not to file a motion for a redetermination of probable cause. Accordingly, the Court determines that [Petitioner's] IAC claim is not colorable.(Doc. 12-1 at 725-27)
Because the superior court provided the last detailed rationale relevant to Petitioner's Ground One (b) claim, the Court may “look through” the appeals court's decision and may rely on the superior court's reasoning. Wilson, 138 S.Ct. at 1192.
At Petitioner's second settlement conference, Petitioner stated that he wanted to challenge the grand jury proceedings. (Id. at 120) Judge Viola explained that Petitioner's previous counsel Kerrie Droban failed to timely challenge the grand jury proceedings. (Id. at 120-21, 125-29) Judge Viola also explained that the testimony presented to a grand jury could differ from evidence presented at trial and that a grand jury only needed to find probable cause, whereas a trial jury would need to find guilt beyond a reasonable doubt. (Id. at 122-24) Further, Judge Viola explained that challenging the indictment might not have impacted the grand jury's decision, that any challenge to the grand jury proceedings would be moot if Petitioner were convicted, and that challenging the grand jury proceedings would not ultimately change the outcome of Petitioner's case because Petitioner could only go to trial or enter a plea given the procedural posture of the matter at that time. (Id. at 131-33)
Under clearly established federal law on IAC, a petitioner must show that his counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). In federal habeas corpus review, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). A habeas court reviewing a claim of ineffective assistance of counsel must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). Moreover, “[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669. When review of the Strickland test is under Section 2254(d), “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court has discretion to determine which Strickland prong to apply first, and the failure to satisfy either prong of the Strickland test obviates the need to consider the other prong. Strickland, 466 U.S. at 697. To establish prejudice, a defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
To prevail on his Ground One (b) claim, Petitioner must establish that the state court's decision rejecting his claim of IAC of trial counsel was an unreasonable application of Strickland or was based on an unreasonable application of the facts presented in his state court proceeding. 28 U.S.C. § 2254(d).
As the superior court found, even if Petitioner's counsel Kerrie Droban erred in failing to challenge the grand jury proceedings, Petitioner cannot show that he was prejudiced because a trial jury found Petitioner guilty of the charge against him following a five-day trial. Even where there is error in a grand jury proceeding, any error “becomes moot once a jury returns a verdict of guilty beyond a reasonable doubt.” Rolf v. Ryan, 2017 WL 2790694, at *8 (D. Ariz. May 24, 2017) (citing United States v. Mechanik, 475 U.S. 66, 72 (1986)). Therefore, “any constitutional error in the grand jury proceedings is harmless” where a petitioner is “ultimately convicted of the offenses charged.” Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir. 2006). Moreover, the United States Supreme Court has stated that where the trial itself was free from error, the reversal of a petitioner's conviction “cannot restore to the defendant whatever benefit might have accrued to him from a trial on an indictment returned [free from error.]” United States v. Mechanik, 475 U.S. 66, 71 (1986). Although Petitioner argues that a new grand jury likely would have come to a different conclusion if counsel Kerrie Droban had challenged the grand jury proceedings, Petitioner's conviction by the trial jury's finding of guilt beyond a reasonable doubt demonstrates that sufficient evidence existed for a grand jury to find probable cause and indict Petitioner. Under established federal law, any error in counsel Kerrie Droban's failure to challenge the grand jury proceedings was harmless. See Id. (guilty verdict after jury trial caused any error in grand jury to be harmless). Because Petitioner cannot show a reasonable probability that the result of the grand jury proceedings would have changed if counsel Kerrie Droban had challenged the grand jury, Petitioner cannot establish prejudice under Strickland as a result of counsel's actions. Strickland, 466 U.S. at 694.
Petitioner has not shown that the state court's decision rejecting his claim of IAC of counsel Kerrie Droban was an unreasonable application of Strickland or was based on an unreasonable application of the facts. 28 U.S.C. § 2254. Accordingly, Petitioner's Ground One (b) claim fails on the merits. 2. Ground Two
In Ground Two of the Amended Petition, Petitioner asserts that the state violated Batson in striking Juror 8, thereby violating Petitioner's right to an impartial jury and right to a fair trial. (Doc. 5 at 13-15; Doc. 6 at 11-12) Petitioner argues that the trial court stated that Juror 8 would have to be assertive in the jury room, supplanting the state's given reason that Juror 8 would not be assertive throughout trial; that Juror 8 did not have a problem asserting herself and stated that she did not have a hardship; that three jurors eventually selected to serve in Petitioner's trial also did not speak up other than to provide biographical information; and that there was no reason for Juror 8 to be heard during the trial. (Doc. 5 at 13-15)
In their Answer, Respondents argue that Petitioner's Ground Two claim is meritless because “a potential juror's timidity is plainly a race-neutral reason for a strike” and because deference should be given to a trial court's determination as to a prosecutor's race-neutral reason. (Doc. 12 at 16-20) Specifically, Respondents assert that the trial court did not supplant the prosecutor's race-neutral reason by stating that Juror 8 would have to be assertive in the jury room, as opposed to throughout trial; that the record supports a conclusion that Juror 8 was timid; and that Petitioner did not point out other potential jurors who were hard to hear but were not excused. (Id. at 18-20)
In providing the last reasoned decision on this issue during Petitioner's direct appeal, the court of appeals stated:
During jury selection, [Petitioner] unsuccessfully challenged the State's peremptory strike of prospective Juror 8, a woman who appeared to be Hispanic.
The Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from striking prospective jurors solely on account of their race. Batson, 476 U.S. at 89. “A Batson challenge proceeds in three steps: (1) the party challenging the strikes must make a prima facie showing of discrimination; (2) the striking party must provide a race-neutral reason for the strike; and (3) if a race-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful racial discrimination.” State v. Bustamante, 229 Ariz. 256, 260, ¶ 14 (App. 2012) (citation omitted). When reviewing a superior court's ruling on a Batson challenge, we review de novo the court's application of the law but defer to its findings of fact unless clearly erroneous. State v. Newell, 212 Ariz. 389, 400-01, ¶ 52 (2006).
After [Petitioner] challenged the State's peremptory strike of Juror 8, the prosecutor responded that she struck the juror because she had trouble hearing the juror, and “was concerned that her lack of assertiveness and her general volume would be a problem throughout the trial.” [Petitioner] replied that the State did not similarly strike other jurors who spoke in a low tone of voice and that there is no need for the juror to speak loudly because the juror is not a witness. Finding the State provided a race-neutral reason regarding the juror's potential lack of assertiveness in jury deliberations, the court denied [Petitioner's] Batson challenge.
As part of the three-step analysis required by Batson, we first determine whether the party challenging the strikes has made a prima facie showing of discrimination. Bustamante, 229 Ariz. at 260, ¶ 14. That first step is completed upon a request by the superior court that the State explain the peremptory strikes. State v. Trostle, 191 Ariz. 4, 12 (1997). Here, the court asked the State to explain its peremptory strike of Juror 8.
The State provided a race-neutral reason for the strike when it avowed that Juror 8 was struck due to her low volume in speaking and general concerns regarding her potential lack of assertiveness in jury deliberations. On its face, this reason is race-neutral. Because the State offered a race-neutral explanation for its strike of Juror 8, the second part of the Batson analysis, the superior court was required to determine whether [Petitioner] had carried his burden of proving purposeful racial discrimination. “This third step is fact intensive and will turn on issues of credibility, which the trial court is in a better position to assess than is this [c]ourt.” Newell, 212 Ariz. at 401, ¶ 54.
Boyd argues that the State's explanation is weak because Juror 8 was heard each time she spoke, and no one asked her to raise her voice. Although a request to speak more loudly would be indicative that someone is soft-spoken, it does not follow that one must be asked to raise one's voice in order to be considered soft-spoken or unassertive. And the explanation, here, is not that the prosecutor could not hear the juror at all, it was that she had trouble hearing the juror. More importantly, the prosecutor expressed a concern that Juror 8 might not be sufficiently assertive during jury deliberations, deferring to other jurors. The superior court is in the best position to observe the demeanor, body language, assertiveness and volume of a juror when speaking. These are all characteristics not reflected on the written record but easily observed by the superior court. Consistent with State v. Decker, 239 Ariz. 29, 31, ¶ 5 (App. 2016), and according deference to the court's first-hand assessment of the juror's demeanor and tone, as well as the prosecutor's credibility, Boyd has not established that the superior court abused its discretion by denying his Batson challenge.(Doc. 12-1 at 669-70)
Petitioner also raised his Ground Two claim in his PCR proceedings, but the superior court determined that Petitioner's Ground Two claim was precluded under Ariz. R. Crim. P. 32.2(a)(2) because Petitioner's Ground Two claim was raised and adjudicated on appeal. (Id. at 727) The court of appeals' decision in Petitioner's direct appeal is the last reasoned decision on the merits because it is the last decision in which a court resolved Petitioner's rights based on the substance of the claim, rather than on the basis of a procedural rule. Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir. 2005). [18] Counsel for Petitioner. (See Doc. 12-1 at 146)
During voir dire, Juror 8 stated her biographical information. (Id. at 220) The trial court stated that Juror 8 had raised her hand twice for hardship but did not speak up, and when asked if she had a hardship, Juror 8 stated that she did not. (Id. at 262) Following a brief recess, the Court asked whether counsel had any Batson challenges:
MR. TOWNSEND: The State struck Juror No. 8, Judge. Prima faciely, she's someone who appeared to be of Hispanic background, a minority group. I believe pursuant to the Batson, State versus Batson, that prima faciely that's enough for us to challenge that on the basis of her race. So we'd ask that -- challenging State striking Juror No. 8.
THE COURT: Ms. Lake.
MS. LAKE: Judge, under Batson the defense is required to provide a primi [sic] facie case of racial animus, and then the State need only provide a single nonracial reason for striking that juror in order to win the Batson challenge.
I struck Juror 8 because I had trouble hearing her. The court reporter had trouble hearing her when I was following up with her. And I was concerned that her lack of assertiveness and her general volume would be a problem throughout the trial.
THE COURT: Thank you. The Court does find that the explanation given by the State is a race-neutral reason for the strike and the strike will be allowed.
Go ahead, Mr. Townsend.
MR. TOWNSEND: Judge, as you know, Juror No. 8 is not on trial, she's not a witness, there's no reason for her to have to speak up loudly in terms of being inside a courtroom.
THE COURT: But she has to be assertive in the jury room, and that's a race-neutral reason for the State to strike her. They had concerns about that.
MR. TOWNSEND: Just for the record, Judge, I would simply put that I believe that there were other jurors who didn't speak up either and the State did not strike those jurors. But that being said, it's my belief that given the State's claim that they struck her solely because of that issue, I think does not hold water in light of the fact that even when they tried to get her during voir dire to say that she had any conflict of some sort, it seemed to me that they clearly didn't want Juror No. 8 and they are now using the excuse that she, quote/unquote, “didn't speak up” as a race-neutral reason.
But for the record, I would simply put my objection on the record saying I believe that they have struck her based solely upon the idea that they based on race and nothing at all because the juror did not say not one word throughout the jury process. She never once said anything that I would deem to be something that the State would be wanting her not to be a juror.
THE COURT: Okay. You've made your record. The Court's ruling will stand.(Id. at 280-82)
Counsel for the state. (See Doc. 12-1 at 146)
To prevail on his Ground Two claim, Petitioner must show that the state court decision was based on an unreasonable determination of the facts or was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254.
A defendant has a right to “be tried by a jury whose members are selected pursuant to nondiscriminatory criteria” and which reflects a cross-section of his community. Batson v. Kentucky, 476 U.S. 79, 85-85 (1986). If a defendant challenges the exclusion of a juror under Batson, “(1) the party challenging the strikes must make a prima facie showing of discrimination; (2) the striking party must provide a race-neutral reason for the strike; and (3) if a race-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful racial discrimination.” State v. Bustamante, 229 Ariz. 256 (App. 2012); see also Johnson v. California, 545 U.S. 162, 168 (2005).
The Ninth Circuit has held that a juror's “passivity, inattentiveness or inability to relate to other jurors” is a valid, race-neutral explanation to strike that juror. United States v. Changco, 1 F.3d 837, 840 (9th Cir. 1993); see also Leon v. Foulk, 2015 WL 9997231, at *11 (C.D. Cal. Mar. 27, 2015) (juror's uncertainty about answers was valid, race-neutral reason to strike); United States v. Daly, 974 F.2d 1215, 1219 (9th Cir. 1992) (not clearly erroneous to strike juror who was difficult to understand). Moreover, where a prosecutor makes a peremptory challenge based on a juror's demeanor, the “trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes[,]” and an appellate court will defer to the trial court unless there are exceptional circumstances. Davis v. Ayala, 576 U.S. 257, 273-74 (2015) (citing Snyder v. Louisiana, 552 U.S. 472, 477 (2008)). Even where “‘[r]easonable minds reviewing the record might disagree about the prosecutor's credibility, … on habeas review that does not suffice to supersede the trial court's credibility determination.'” Id. at 274 (quoting Rice v. Collins, 546 U.S. 333, 343 (2006) (Breyer, J., concurring)).
Assuming that Petitioner's counsel Corwin Townsend presented a prima facie showing of discrimination in stating that Juror 8 appeared to be Hispanic, the state provided a valid, race-neutral reason for its strike, namely that Juror 8 was difficult to hear and would not be assertive during jury deliberations. (Doc. 12-1 at 280-281) Petitioner's counsel did not provide any further showing to the trial court of purposeful racial discrimination. (See id. at 280-82) It is Petitioner's burden, as the party “who alleges discriminatory selection of the venire ‘to prove the existence of purposeful discrimination.'” Batson, 476 U.S. at 93 (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)).
Although Petitioner argues that the trial court allowed Jurors 2, 14, and 32 to serve on the jury even though these three jurors did not speak up during voir dire except to answer biographical questions, Petitioner does not assert or establish that Jurors 2, 14, and 32 were difficult to hear. (Doc. 5 at 13-15) Petitioner also does not point to evidence countering the state's assertion that Juror 8 was hard to hear. Petitioner further states that Juror 20 only spoke to allege a hardship and to answer biographical questions, yet Juror 20 was not struck for hardship. (Id. at 13-14) Petitioner also asserts that the state attempted to strike Juror 28 for hardship or for cause due to Juror 28's views and body language, yet the trial court did not strike Juror 28. (Id. at 14) Petitioner's reasoning with respect to the jurors who remained on the jury does not establish that the state struck Juror 8 for a discriminatory reason.
Petitioner recognizes that Juror 28 was not ultimately selected for the jury. (Doc. 5 at 14)
As the court of appeals recognized, the trial court's determination regarding Juror 8 is owed deference, given that the trial court was best situated to observe Juror 8's volume and demeanor. See Batson, 476 U.S. at 98 n.21; Davis, 576 U.S. at 273-74. No exceptional circumstances exist here to “supersede the trial court's credibility determination.” Davis, 576 U.S. at 274. Further, although Petitioner argues that the Arizona Court of Appeals required a trial court to make express findings as to a demeanor-based reason for striking a juror (Doc. 5 at 14-15), the Arizona Supreme Court reversed the decision Petitioner cites and disagreed that a trial court must make “express findings on the credibility of a demeanor-based justification in response to a Batson challenge.” State v. Porter, 251 Ariz. 293, 298-300 (2021).
On this record, Petitioner has not established that the state court's decision on his Ground Two claim was based on an unreasonable determination of the facts or was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254. Accordingly, Petitioner's Ground Two claim fails on the merits.
3. Ground Three
In Ground Three of the Amended Petition, Petitioner asserts that the trial court abused its discretion by failing to give a jury instruction that simple assault was a lesser-included offense of aggravated assault. (Doc. 5 at 16; Doc. 6 at 12) Petitioner asserts that aggravated assault includes the elements of simple assault, that Petitioner did not have a knife when he was arrested, and that the only evidence presented that Petitioner had a knife was the victim's testimony. (Doc. 5 at 16) Petitioner argues that if the jury had been given a lesser-included offense instruction, the evidence presented at trial could have led the trial jury to conclude that Petitioner had only committed simple assault, i.e., not aggravated by the use of a deadly weapon, instead of aggravated assault. (Id.)
In their Answer, Respondents argue that Petitioner's Ground Three claim is meritless because the United States Supreme Court “has never held that a defendant is entitled to a lesser-included-offense instruction in a non-capital case” and “has expressly declined to address that issue. See Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980) (‘We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.').” (Doc. 12 at 20-22)
To prevail on his Ground Three claim, Petitioner must show that the state court decision was based on an unreasonable determination of the facts or was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254.
In providing the last reasoned decision on this issue during Petitioner's direct appeal of his conviction and sentence, the Arizona Court of Appeals stated:
[Petitioner] argues the court erred in denying his requested simple assault instruction because, given the fact that the police never recovered a knife and that [Petitioner] yelled, “Do you want some of this? I'll kill you, too,” the jury might have believed [Petitioner] did not use a deadly weapon but still threatened W.J.
“We deem evidence sufficient to require a lesser-included offense instruction if two conditions are met. The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense.” State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006). However, “[t]he law does not require or even permit” instructions on lesser-included offenses based on the possibility “that the jury might simply disbelieve the state's evidence on one element of the crime.” State v. Schroeder, 95 Ariz. 255, 259 (1964). “This court review a trial
court's denial of a requested jury instruction for an abuse of discretion.” Wall, 212 Ariz. at 3, ¶ 12.
Here, the State presented evidence that [Petitioner] used a knife when he placed W.J. in reasonable apprehension of physical injury. W.J. testified that [Petitioner] came up to him with a knife and described the knife in detail. W.J.'s phone call to the police, which was played to the jury, established the same. While counsel for [Petitioner] argued that the jury should disbelieve W.J. and that [Petitioner] did not use a knife, statements by counsel are not evidence. See State v. Goudeau, 239 Ariz. 421, 449, ¶ 88 (2016) (statements and arguments by counsel are not evidence). [Petitioner] did not testify, and there was no evidence presented at trial from which the jurors could conclude that [Petitioner] assaulted W.J. without a weapon. A simple assault instruction is not warranted simply because the jury may hypothetically disbelieve the evidence that a deadly weapon was used. See Schroeder, 95 Ariz. at 259. Accordingly, the court properly denied [Petitioner's] requested instruction on simple assault.(Doc. 12-1 at 670-71)
On the third day of Petitioner's trial, the victim testified on direct examination that Petitioner had a metal knife that was 6 to 7 inches long and had a shiny handle and a dull blade. (Id. at 364-66, 403-04) The victim stated that Petitioner attempted to stab another man with the knife, that the victim called 911 and described the events and the knife, and that Petitioner ran toward the victim with the blade pointed at the victim and tried to stab at the victim. (Id. at 366, 370-71, 379-80) On cross-examination, the victim testified that he told the 911 operator that Petitioner was attempting to stab other people but that he did not tell the 911 operator or responding police officers how far away Petitioner was from the victim when Petitioner approached the victim with the knife. (Id. at 394-99) The victim stated that he was within 3 to 4 feet of Petitioner and Petitioner's knife, that he could not tell exactly what type of knife Petitioner had, and that police officers did not ask the victim to identify a knife. (Id.) On redirect examination, the victim testified that he told the 911 operator that Petitioner had a knife that was 6 to 7 inches long and that the victim had no doubt that Petitioner had a knife. (Id. at 403-04)
Following the victim's testimony, Officer Liu, one of the police officers who had arrested Petitioner, testified that Petitioner did not have a knife at the time of his arrest, that Officer Liu stated in a police report that Petitioner had no weapon, that Officer Liu understood that the police were looking for someone with a weapon, and that Officer Liu personally did not search the area of Petitioner's arrest for a weapon. (Id. at 412-17) Officer Sewell testified that the victim stated that he saw Petitioner running with and attempting to stab another person with a knife, that the victim described the knife, and that Officer Sewell looked for a knife with other police officers at the time of Petitioner's arrest. (Id. at 434-37) Officer Sewell stated that Petitioner did not have a knife when he was arrested, that the police never found a knife in the area of Petitioner's arrest, and that the victim was the only person who asserted that Petitioner had a knife. (Id. at 445-47, 453-55, 465)
Also on the third day of Petitioner's trial, Petitioner's counsel Corwin Townsend requested a jury instruction that assault was a lesser-included offense of aggravated assault:
MR. TOWNSEND: The other issue, Judge -- I'll make a record, just a quick record about that tomorrow. The other issue is I'm going to ask for a lesser included offense of assault, which is the lesser included offense of aggravated assault.
THE COURT: Does the State have a position on that?
MS. LAKE: I mean, I would object, Judge. I think the Court -- it's the province of the Court to determine whether there's sufficient evidence from which a reasonable jury could convict the defendant of assault, and there simply isn't in this case. If it's -- if the jury believes the defendant didn't have a knife, then he's not guilty. It's not a lesser included of misdemeanor assault.
THE COURT: I'm inclined not to give it and just let the jury deliberate on the aggravated assault charge.
MR. TOWNSEND: So, Judge, I think the evidence -- just so the Court knows, I think the evidence has been that there's been a contested issue about whether or not there was an actual knife involved. There's been testimony that there was some type of argument or some type of something between my client and the victim where the victim said he felt threatened.
I think a reasonable jury could say we believe that there was some type of altercation, some type of argument or whatever, but we don't believe that he had a knife based upon the lack of evidence in that regard.
So I think under the law, and I'll send the Court and the State case law on this, but I think whenever a lesser included offense is requested, I do think that as long as there's a scintilla of evidence that would allow a reasonable juror to come to that conclusion, I think the Court is duty bound to give it.
In this case because the reasonable juror, in my opinion, could find, based upon the evidence that's been presented, and there's no doubt that simple assault is a lesser included offense of aggravated assault --
THE COURT: Let me ask you this to make sure I'm clear, because, as you said, there's a dispute as to whether there was a knife, and you said a jury
could conclude that there was no knife, and I agree, the jury could conclude that. And if that were to happen, under the charged instruction they would have to find the defendant not guilty, but you're asking me to include a lesser included offense.
So if the jury agrees with you, there was no knife and finds that there was no knife, you want me to include an instruction that would allow the defendant to be convicted of the lesser included offense of assault?
MR. TOWNSEND: Misdemeanor assault, correct, I do.
MS. LAKE: Judge, again, we would object. There's been no evidence -- to convict on misdemeanor assault, the jury would have to conclude that the defendant made some kind of non-knife wielding gesture to place the victim in fear of injury, and there's been only one witness who has testified about the events that led to the assault and that witness said he had a knife. There is no witness who came in and said, I saw it happen, but he had a fist or a cell phone or something else he was going to hit him with.
THE COURT: I tend to agree with the State. I'll let you make your record --you've made your record, actually. If you want to submit something to my judicial assistant and the State, I'll take a look at it, but right now I'm inclined not to give the lesser included offense.(Id. at 478-81)
On the fourth day of Petitioner's trial, the trial court stated its reasoning for disallowing a lesser-included offense of assault:
THE COURT: […] On the request for the lesser included offense of assault, the law requires for the Court to be required to give a lesser included offense instruction that the evidence support that lesser included offense. There's no doubt that simple assault is a lesser included of aggravated assault.
I think the best way to explain why I don't see evidence supporting the simple assault instruction is as follows: Let's assume that I gave the instructions as requested and the jury had the opportunity to consider aggravated assault and then the lesser included offense of simple assault. If the jury were to find not guilty on the aggravated assault and then find guilty on the assault, that would tell me that the jury did not find that there was a knife that was the disputed issue, and if they then found that the defendant had committed simple assault, which requires intentionally placing somebody in imminent fear for their safety, there's no evidence to support that without the knife and I probably would have to grant a Rule 20 motion after the verdict came back in. And in reviewing what was submitted, Arivas, the case cited by Mr. Townsend, it is clear that two lesser included offenses for aggravated assault are simple assault and disorderly conduct. And for the reasons I've stated, the evidence doesn't support the instruction for simple assault, but it could support giving the instruction for disorderly conduct because the disorderly conduct requirement is that the -- requires proof that the defendant knowingly or intentionally disturbed the peace or quiet of a neighborhood or a person by recklessly handling or displaying a deadly weapon or a dangerous instrument. And that the jury presumably could find the defendant not guilty of aggravated assault believing that he had the knife, but not believing that
he intentionally placed somebody in imminent fear for their safety.
So you could have a not guilty based on the defendant having the knife. And in that circumstance, if the jury didn't find that the defendant had the requisite intent, they still could find he committed disorderly conduct with the knife by knowingly or intentionally disturbing the peace or quiet of a neighborhood or a person by recklessly handling or displaying the deadly weapon or dangerous instrument.
So I am willing to give the lesser included disorderly instruction, if that's what the defense wants to do.(Id. at 487-89) After Petitioner and his counsel Corwin Townsend conferred, Petitioner's counsel stated:
MR. TOWNSEND: Judge, my client is saying that he understands it would be a lesser included offense, but it would be a felony still that would carry prison time, so he's asking me -- and I'm not asking for it -- the Court to give the lesser included offense of disorderly conduct.
THE COURT: You're asking not to give that?
MR. TOWNSEND: Correct.
MS. LAKE: Judge?
THE COURT: Go ahead.
MS. LAKE: I would just note that it's the province of the Court to give or not give a lesser included instruction when the Court feels that it's supported by the evidence. I'm not asking for the Court to give this instruction, I just want the record to be clear it's not the defendant's choice.
THE COURT: Well, and I understand that, I wanted the defendant's input since he had asked for the lesser included instruction regarding assault and I've determined that I could give it. I don't necessarily believe that it's warranted here and based on the input I'll decide not to give the lesser included instruction, so we will go with the jury instructions as originally sent to you except that the statement of defendant, that instruction is taken out.
Are there any other issues with those jury instructions?
MR. TOWNSEND: No, Judge, but does the Court want me to put the case on the record? We mentioned Arivas, but do you want to put the citation on the record?
THE COURT: Sure. It is 236 Arizona 472, State versus Arivas. I don't have the cites for the other cases that I looked at, but it's not -- I don't think it's a contested proposition that there has to be evidence to support the lesser included instruction for the Court to give it.(Id. at 490-91)
As Respondents correctly point out, the United States Supreme Court has not established that a criminal defendant in a non-capital case has a right to a lesser-included offense instruction. Beck, 447 U.S. at 638 n.14. The Ninth Circuit, as well, has expressly stated that “[i]n the context of a habeas corpus review of a state court conviction, […] there is no clearly established federal constitutional right to lesser included instructions in noncapital cases.” United States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (citing Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2007)); see also Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (“Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.”). Because no clearly established federal law requires a state court to provide a lesser-included offense instruction, Petitioner is not entitled to relief on his Ground Three claim of the Amended Petition. See Kernan v. Cuero, 583 U.S. 1, 3 (2017) (reversing Ninth Circuit decision that was in favor of petitioner where no Supreme Court decision clearly established that an action was required of state court).
Further, Petitioner has not established that the state court's decision on his Ground Three claim was based on an unreasonable determination of the facts.
Accordingly, Petitioner's Ground Three claim fails on the merits.
C. Conclusion
Because Petitioner has not established that the state court's decision regarding his Grounds One (b), Two, and Three claims were either contrary to or involved an unreasonable application of clearly established federal law or were an unreasonable application of the facts, Petitioner's Grounds One (b), Two, and Three claims fail on the merits.
VI.CONCLUSION
For the reasons set forth above, Petitioner's Ground Four claim is procedurally defaulted without excuse. Petitioner's Ground One (a) claim is non-cognizable in these proceedings. Petitioner's Grounds One (b), Two, and Three claims fail on the merits. Therefore, it is recommended that the Amended Petition be dismissed and denied with prejudice and that the Clerk of Court be directed to terminate this matter.
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, because Petitioner has not “made a substantial showing of the denial of a constitutional right[,]” and because jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's Grounds One (b), Two, and Three claims to be “debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, IT IS THEREFORE RECOMMENDED that Eleazar Lumumba Boyd's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 5) be dismissed and denied with prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 13th day of September, 2023.