Opinion
CV-19-0588-TUC-RCC (LCK
10-08-2021
Bryan Scott Graff, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Petitioner Bryan Graff, incarcerated at the Arizona State Prison in Florence, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before this Court are the Amended Petition (Doc. 9), Respondents' Answer (Doc. 18), and Petitioner's Reply (Docs. 19, 21). Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. The Magistrate Judge recommends the District Court, after its independent review of the record, deny the Petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was convicted in the Pima County Superior Court on two counts of sexual assault and one count of kidnapping (Doc. 18, Ex. L at 2.) On March 21, 2016, after finding two or more prior felony convictions, the court sentenced him to three, consecutive, 28-year terms, for a total of 84 years. (Id., Ex. M at 2-4.)
Petitioner appealed and, on June 26, 2017, the appellate court affirmed his convictions and sentences. (Docs. 9-1; 9-2; 9-3; 9-9 at 25 to 9-10 at 12.) The Arizona Court of Appeals summarized the facts in support of Petitioner's conviction:
¶ 2 In April 2015 at around 1:00 in the morning, H.A. visited the gentlemen's club where she worked. She was not working that evening and only stayed for a brief time. After she left, she met Graff while walking down the street. She thought Graff looked familiar and was unsure whether or not he was a friend of hers. The two talked briefly, and H.A. then asked Graff if she could stay with him for the night. Graff began trying to kiss H.A. He led her into a dark corner, pushed her against a fence, threw her on the ground, and removed her clothing. He performed oral sex on her and had vaginal intercourse with her, both of which were without her consent. Graff choked her while raping her, beat her, and punched her head into the ground. After twenty-five or thirty minutes, Graff stopped and told H.A. he would take her somewhere to get cleaned up. H.A. ran away from him and into a nearby convenience store.
¶ 3 Officers with the Tucson Police Department arrived and located Graff nearby. Graff had blood on his face and hands. DNA testing showed that the blood belonged to H.A. Graff's sperm was found in H.A.'s vulva and vagina.(Doc. 9-10 at 1-2.) Petitioner filed a Petition for Review with the Arizona Supreme Court, which was denied on December 12, 2017. (Docs. 9-9 at 8-19; Doc. 18, Ex. Q.)
Petitioner filed a Notice for Post-Conviction Relief (PCR) on December 22, 2017. (Doc. 18, Ex. S.) Appointed counsel advised the court that she had found no colorable claims. (Id., Exs. T, U.) Petitioner filed a pro se Petition seven days after the deadline set by the Court. (Id., Exs. V, W.) On November 28, 2018, the PCR court dismissed the PCR Petition without a hearing. The court first noted the Petition was untimely but then stated that, after a thorough review of the merits, the Petition was dismissed because Petitioner had not presented a colorable claim. (Doc. 9-8 at 15-22.) Specifically, the PCR court concluded that Petitioner's ineffective assistance of counsel (IAC) claims were without merit. (Id. at 17-21.) As to Petitioner's other claims, the court found they were not colorable because they were either resolved on appeal or were waived as untimely. (Id. at 21.)
The PCR court granted Petitioner's request for an extension, until September 6, 2019, in which to seek review of that decision. (Doc. 9-8 at 24.) Petitioner filed a petition for review with the Arizona Court of Appeals on August 16, 2019. (Id. at 1-14.) The court of appeals issued an order dismissing the petition as untimely but with leave to seek an extension in the superior court. (Doc. 18, Ex. AA.) When Petitioner filed nothing to show that he had been granted an extension for his appeal, the appellate court issued a mandate. (Id., Ex. BB.) Petitioner did not seek relief from that dismissal.
Petitioner initiated this federal habeas action on December 19, 2019. (Doc. 1.) Petitioner filed an Amended Petition on April 23, 2020. (Doc. 9.)
DISCUSSION
The Amended Petition includes thirteen claims. Respondents argue that all of the claims are procedurally defaulted, with the exception of Claim 4. Respondents also argue that Claim 13, which was first alleged in the Amended Petition, is untimely. The Court first reviews the claims for exhaustion and procedural default and then evaluates the remaining claims on the merits.
EXHAUSTION AND PROCEDURAL DEFAULT
Standard
A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must “fairly present” the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).
In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in 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.” Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy), overruled on other grounds by Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). If no remedies are currently available pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.
Analysis
Claims 1-3, 5, 8, 11, and 12
In Baldwin v. Reese, the Supreme Court stated that the purpose of the exhaustion requirement is to give states the opportunity to “pass upon and correct” alleged constitutional errors. 541 U.S. 27, 29 (2004); see also Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (“a petitioner may provide further facts to support a claim in federal district court, so long as those facts do not fundamentally alter the legal claim already considered by the state courts”). Therefore, if a petitioner did not present the federal habeas claim to the state court as asserting the violation of a specific federal constitutional right, as opposed to violation of a state constitutional right or state law, the federal habeas claim was not “fairly presented” to the state court. See Baldwin, 541 U.S. at 33; Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (“[n]either did Castillo cite relevant state or federal cases that might have alerted the Arizona court to his claim.”). Although a habeas petitioner need not recite “book and verse on the federal constitution” to the state courts, they must do more than present the facts necessary to support the federal claim. See Picard, 404 U.S. at 277-78; Anderson, 459 U.S. at 6. A petitioner's general reference to “constitutional error, ” “deprivation of a fair trial, ” or “due process, ” without more, does not fairly present a federal constitutional claim. Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000).
Claims 1-3
In Claim 1, Petitioner alleges his 5th and 14th Amendment rights were violated by the late disclosure of DNA evidence. In particular, he asked for a speedy trial and earlier processing of the DNA evidence, but he was not able to both fight the DNA evidence and have a speedy trial. On direct appeal, Petitioner argued that the court's failure to preclude the DNA evidence based on late disclosure was an abuse of discretion under Arizona law. (Doc. 9-1 at 14-26.) In turn, the appellate court addressed this claim solely as one alleging error under state law. (Doc. 9-10 at 2-3.)
In Claim 2, Petitioner alleges his 5th, 6th, and 14th Amendment rights were violated by the trial court's admission of evidence that he had made sexual advances towards, and tried to kiss, a woman (other than the victim) on the night of the crime. On direct appeal, Petitioner argued that admission of this evidence violated the state rules against the admission of propensity evidence and other bad act evidence (Doc. 9-1 at 26 to 9-2 at 6.) The appellate court found this evidence was not admitted as propensity evidence and was admissible under the state rules of evidence. (Doc. 9-10 at 3-5.)
In Claim 3, Petitioner alleges a violation of his 5th, 6th, and 14th Amendment rights based on the admission of full-body photos of his tattoos that were irrelevant and prejudicial. On direct appeal, Petitioner argued that the prejudicial value of the full-body photos so outweighed their probative benefit that admission violated the state rules of evidence. (Doc. 9-2 at 6-7.) The appellate court found the trial court did not abuse its discretion in admitting the evidence under the state rules of evidence. (Doc. 9-10 at 5.)
Petitioner did not argue, in state court, federal claims based on the facts presented in Claims 1 to 3.
Claim 5
Petitioner alleges his 5th, 6th, and 14th Amendment rights were violated by the denial of a competency hearing under Arizona Rule of Criminal Procedure 11 and an evaluation under Arizona Rule of Criminal Procedure 26.5 for purposes of sentencing. On appeal, Petitioner argued that the trial court abused its discretion in denying Rule 11 and Rule 26.5 evaluations prior to sentencing. (Doc. 9-3 at 10, 11, 20.) Petitioner cited Rule 11 and two state cases indicating a person should be competent for sentencing. (Doc. 9-3 at 10 (citing State v. Montano, 667 P.2d 1320, 136 Ariz. 605 (Ct. App. 1983); State v. Pierce, 577 P.2d 272, 118 Ariz. 421 (Ct. App. 1978).) Neither of those decisions addressed a constitutional issue arising out of competency at sentencing. Montano, 667 P.2d at 1323, 136 Ariz. at 608; Pierce, 577 P.2d at 272, 118 Ariz. at 421. Petitioner also argued that a defendant's mental state at the time of the crime may operate as a mitigating factor under Arizona law. (Doc. 9-3 at 16-18.) Petitioner did not argue in state court that the absence of evaluations under Rules 11 and 26.5 violated his federal constitutional rights. The court of appeals found Petitioner had not made a showing of incompetence, therefore, the court did not abuse its discretion in denying a competency examination. (Doc. 9-10 at 11.) Petitioner did not fairly present, before the state court, the facts of Claim 5 as a federal constitutional claim.
Petitioner's appellate brief referenced due process and cited Pate v. Robinson, 383 U.S. 375, 378 (1966) (Doc. 9-3 at 10), but the holding of that case - that it is a violation of due process to convict an incompetent person - did not touch on constitutional issues related to sentencing. Similarly, Petitioner's brief cited Bishop v. Superior Ct., in & for Pima Cty., 724 P.2d 23, 25, 150 Ariz. 404, 406 (1986), for the proposition that a defendant has a 6th Amendment right to “control and participate in his defense.” (Doc. 9-3 at 15.) That case, however, was solely about a defendant's rights related to trial and conviction, not sentencing. Id. “Citation of irrelevant federal or state cases does not provide a state court with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Castillo, 399 F.3d at 1001 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007)); Shumway, 223 F.3d at 988 (“Where the constitutional claim raised in a cited case is not the same claim that the petitioner asserts was presented to the state court, ‘it is clear that such a citation is insufficient.'”)
Claims 8, 11, 12
In Claim 8, Petitioner alleges his 5th, 6th, and 14th Amendment rights, as well as his rights based on Rule 404, 601, 608, and 803, were violated by the admission of the victim's identification of him as the perpetrator of the crime, full body photographs, and DNA evidence. In his pro se PCR Petition, Petitioner alleged that his constitutional rights were violated by use of an illegal identification of him based on the word of a “crazy” person. (Doc. 18-1 at 102.) In his Petition for Review to the appellate court, he argued that the trial identification of him violated his right to a fair trial under the constitution because the victim was delusional on the night of the crime. (Doc. 9-8 at 6.) He
In Claim 11, Petitioner alleges his 5th, 6th, and 14th Amendment rights were violated by the state suppressing a doctor's report that indicated the victim was on several drugs and delusional the night of the crime, which contradicted the victim's testimony to being sober and clear-headed at the time of the assault. Further, Petitioner alleges his counsel “seem[ed] to be working with the state in keeping this report out of trial.” (Doc. 9 at 16.) He relies on the 5th, 6th, and 14th Amendments. (Id.) In his pro se PCR Petition, Petitioner alleged the state unconstitutionally suppressed the doctor's report and the court precluded it, allowing the victim to lie on the stand without being impeached. (Doc. 18-1 at 111.) In the Petition for Review, Petitioner alleged the state unconstitutionally suppressed the doctor's report that would have shown the victim lied on the stand. (Doc. 9-8 at 12.)
In Claim 12, Petitioner alleges his 5th, 6th, and 14th Amendment rights, as well as his rights under Federal Rule of Evidence 404, were violated by the state's presentation of perjured testimony by the victim. In his pro se PCR Petition, Petitioner alleged the state and the judge unconstitutionally and knowingly allowed the victim to offer perjured testimony. (Doc. 18-1 at 112.) In the Petition for Review, Petitioner alleged the state's knowing use of perjured testimony violated his constitutional rights. (Doc. 9-8 at 13.)
As to each of these claims as raised in state court, Petitioner did not identify a specific constitutional right or cite any law that supported the claims. A general reference to constitutional error or deprivation of a fair trial, without more, did not fairly present Petitioner's allegations of error based on the 5th, 6th, and 14th Amendments. See Casey, 386 F.3d at 913. Further, Petitioner did not cite any case, state or federal, that would have given the state courts notice of a federal claim. See Castillo, 399 F.3d at 1001. Petitioner failed to fairly present the allegations in Claims 8, 11 and 12 as federal claims in state court.
Conclusion
If Petitioner were to return to state court now to litigate these federal claims, they would be found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, Claims 1-3, 5, 8, 11, and 12 are technically exhausted but procedurally defaulted.
In Claims 5-12, Petitioner also alleges a violation of his rights under the 9th Amendment, in addition to the other constitutional provisions cited above. Petitioner did not fairly present in state court a Ninth Amendment violation as to any claim. If he raised these Ninth Amendment claims in state court now, they would be found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, they are technically exhausted and procedurally defaulted. Additionally, the Ninth Amendment claims are without merit. The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. art. IX. The Ninth Amendment “has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation.” San Diego Cty. Gun Rts. Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (noting the Ninth Amendment provides nothing more than a rule on how to read the Constitution) (quoting Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991); citing Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW, 776 n.14 (2d ed. 1988)).
Claims 6 and 7
In Claim 6, Petitioner alleges his 4th, 5th, 6th, 8th, and 14th Amendment rights were violated by his arrest, which was based only on the statement of a delusional victim and was a product of police bias against him. In Claim 7, Petitioner alleges his 4th Amendment rights were violated by a search and seizure based solely on the accusation of a “crazy” person. In his pro se PCR Petition, Petitioner alleged facts similar to those in Claim 6; he did not, however, allege a constitutional violation, only that his arrest was unlawful. (Doc. 18-1 at 98-99.) Petitioner also alleged facts similar to those in Claim 7, asserting that the search and seizure was “unconstitutional.” (Id. at 100-01.) In his summary at the end of the Petition, he stated that “you can't get probable cause from the rant of a psychotic.” (Id. at 113.) General references to constitutional error, without more, did not fairly present Petitioner's allegations of error based on the 4th, 5th, 6th, 8th, and 14th Amendments. See Casey, 386 F.3d at 913. Petitioner failed to fairly present Claims 6 and 7 as federal claims in state court.
If Petitioner were to return to state court now to litigate these federal claims, they would be found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, Claims 6 and 7 are technically exhausted but procedurally defaulted.
Additionally, the Fourth Amendment claims are not subject to review by the Court.In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial.” Pursuant to Stone, a prerequisite for consideration of Petitioner's Fourth Amendment claims is the denial of the chance to fully and fairly litigate the claim in state court.
Although Petitioner cites various amendments to the Constitution, it is the Fourth Amendment that protects against unreasonable searches and seizures, which includes a warrantless arrest made without probable cause to believe the person committed a crime. D.C. v. Wesby, 138 S.Ct. 577, 585-86 (2018).
“The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he in fact did so.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). If a petitioner did not pursue suppression in state court, Stone still bars the claim if the state court provides for the filing of such motions. See Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (finding irrelevant whether petitioner litigated suppression in state court because California penal code allowed him to do so). Arizona allows for the filing of pretrial suppression motions and the denial of a motion may be appealed. Ariz. R. Crim. P. 16.1, 16.2; A.R.S. § 13-4031; see State v. Nissley, 387 P.3d 1256, 1259, 241 Ariz. 327, 330 (2017). The Ninth Circuit has recognized that a defendant may fully litigate a suppression claim in the system provided by Arizona. See Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005) (noting that petitioner filed a pre-trial motion to suppress, after an evidentiary hearing the court made factual findings and limited the admissible evidence, and that decision was reviewed on appeal). Because Petitioner had the opportunity to fully litigate the Fourth Amendment claims in state court, although he did not do so, these claims are barred by Stone.
Claim 9
Petitioner alleges his 5th Amendment right against self-incrimination was violated when (a) the police arrested him in the present case on false accusations in retaliation for not speaking to them about prior criminal allegations against him, and (b) he did not testify at trial because the state could have used the other charges against him. The Court finds this claim is most expediently addressed on the merits. See 28 U.S.C. § 2254(b)(2) (allowing the Court to dismiss an unexhausted claim on the merits); Thues v. Ryan, No. CV-13-00644-PHX, 2014 WL 3571687, at *10-12 (D. Ariz. July 21, 2014) (gathering cases and reaching the merits of procedurally defaulted, not just unexhausted, claims if they are “plainly without merit”).
Claim 10
Petitioner alleges his rights under the 5th, 6th, and 14th Amendments were violated by trial counsel failing to (a) present the doctor and his report to undermine the victim's testimony that she was clear-headed the night of the crime; (b) inform Petitioner of a plea deal; (c) present evidence that he was known to the victim, which would have impeached her testimony; (d) obtain dismissal of a separate charge, which prevented him from testifying; (e) keep both charges in one trial; (f) move for a mistrial based on admission of the photographs of his body; and (g) obtain clothes and video evidence.
In his pro se PCR Petition, Petitioner alleged IAC based on counsel (1) failing to tell him about a plea deal; (2) waiving time when he wanted to invoke his right to a speedy trial; (3) failing to investigate evidence to impeach the victim, including that she knew him prior to the night of the crime; (4) failing to investigate exculpatory evidence; (5) failing to introduce video from the Circle K; (6) failing to present the doctor's report from the victim's visit to the hospital; (7) failing to obtain a body language expert; (8) requesting and obtaining severance of the two assault charges; (9) failing to challenge the indictment; (10) failing to move for a mistrial based on admission of full-body photographs; and (11) failing to obtain dismissal of the first case or object when the prosecutor referenced it at sentencing. (Doc. 18-1 at 105-10.) In the summary at the end of the PCR Petition, Petitioner argued that his counsel's conduct fell below a reasonableness standard and he was prejudiced, citing Strickland v. Washington and United States v. Cronic. (Doc. 18-1 at 113.) The Court finds that Petitioner fairly presented his IAC claim before the PCR court, with the exception of his claim that counsel failed to obtain clothes evidence (a portion of subpart 10(g)).
Respondents argue that the PCR court imposed a procedural bar on all IAC claims raised by Petitioner because they were not timely filed. The PCR Court first found that the Petition was untimely filed and Petitioner had not alleged that his claims met an exception to the rule. (Doc. 9-8 at 16-17.) The court then stated, [d]espite the untimely filing, the PCR court has thoroughly reviewed the Defendant's petition.” (Id. at 17.) The PCR court conducted a merits analysis of Petitioner's IAC claims and denied them. (Id. at 17-19.) The court never stated that it was dismissing the PCR Petition or any claims based on untimeliness. At the end of its decision, the PCR court stated that the Petition was dismissed for failure to state a colorable claim upon which relief could be granted. (Id. at 22.)
A state court can maintain a procedural dismissal, while alternatively ruling on the merits of a claim. Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). However, “unless the state court makes clear that it is resting its decision denying relief on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon federal grounds.” Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir. 1994), as amended on denial of reh'g and reh'g en banc (Oct. 13, 1994). Here, the PCR court did not unambiguously dismiss any claims based on a timeliness bar. Rather than dismissing the IAC claims on two alternative grounds, the court determined it would review the merits despite the petition being untimely. Because the PCR court did not rely upon timeliness as an adequate and independent state ground to deny any claims, it does not preclude review of any claims in this Court.
In the Petition for Review to the court of appeals, Petitioner alleged IAC based on counsel (i) failing to present the doctor's report from the victim's visit to the hospital; (ii) failing to investigate evidence to impeach the victim, including that she knew him prior to the night of the crime; (iii) failing to investigate exculpatory evidence; (iv) failing to tell him about a plea deal; (v) failing to introduce video from the Circle K; (vi) failing to obtain dismissal of the first case or object when the prosecutor referenced it at sentencing; (vii) failing to obtain a body language expert; (viii) waiving time when he wanted to invoke his right to a speedy trial; and (ix) failing to move for a mistrial based on admission of full-body photographs. The Court finds that Petitioner fairly presented his IAC claim to the court of appeals, with the exception of his claim that counsel failed by not keeping the two assault charges in one trial (subpart 10(e)).
Petitioner had to fairly present his IAC claims to both the PCR court and the appellate court. He failed to fairly present in both courts, his claims that counsel failed to obtain clothes evidence (a portion of subpart 10(g)), and counsel failed by not keeping the two assault charges in one trial (subpart 10(e)). If Petitioner were to return to state court now to litigate these federal claims, they would be found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, Claims 10(e) and 10(g), to the extent related to clothes evidence, are technically exhausted but procedurally defaulted.
The court of appeals dismissed Petitioner's Petition for Review as untimely based on Arizona Rule of Criminal Procedure 32.9. However, because Petitioner had obtained an extension and timely filed the Petition for Review, it is not plain that the dismissal would act as an adequate bar to federal court review. Compare Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011) (“[A]n erroneously applied procedural rule does not bar federal habeas review.”) with Foose v. Att'y Gen. of Arizona, No. CV-14-00787-PHX, 2015 WL 3396834, at *8 (D. Ariz. May 26, 2015) (collecting cases and finding that Arizona courts have regularly and consistently followed Rule 32.9(c)). Further, Respondents did not rely upon the appellate court's ruling in arguing that the IAC claim was procedurally defaulted. See Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (finding that it is the state's burden to demonstrate that a procedural default in state court is an independent and adequate ground for the denial of relief). For these reasons, the Court finds it most expeditious to resolve the IAC claims on the merits to the extent they were fairly presented: Claims 10 (a), (b), (c), (d), (f), and (g) regarding video evidence. See 28 U.S.C. § 2254(b)(2) (allowing the Court to dismiss an unexhausted claim on the merits); Thues, 2014 WL 3571687, at *10-12 (gathering cases and reaching the merits of procedurally defaulted, not just unexhausted, claims if they are “plainly without merit”).
Claim 13
Petitioner alleges his sentence amounted to cruel and unusual punishment because the charges related to the other victim should have been dismissed more quickly, the conviction is based on the story of a lunatic, and he got more time than murderers. Petitioner did not fairly present this claim on direct appeal or in a PCR proceeding. (See Doc. 9-1; Doc. 18, Ex. W.)
If Petitioner were to return to state court now to litigate this claim, it would be found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because it does not fall within an exception to preclusion. Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, Claim 13 is technically exhausted but procedurally defaulted. Respondents also argued that Claim 13 is barred by the statute of limitations, but the Court does not need to reach that argument because the procedural default ruling is dispositive. See Cooper v. Neven, 641 F.3d 322, 328 (9th Cir. 2011).
Cause and Prejudice and Fundamental Miscarriage of Justice
Petitioner did not identify cause to overcome the default of any of his claims. However, he did state in his Reply that any untimeliness on his part was due to delay in receiving items from the jail or the state courts not sending him rulings (specifically the PCR court). (Doc. 19.) The Court did not find any claims defaulted based on untimeliness in state court, therefore, this argument cannot provide cause. Petitioner has not identified any other cause for the failure to fairly present any claims before the state courts.
All of Petitioner's defaulted claims, with the exception of Claims 10(e) and (g) (in part), should have been presented, if at all, on appeal. Therefore, Petitioner could have alleged as cause for the defaults the ineffective assistance of appellate counsel. However, before ineffectiveness of appellate counsel may be used to establish cause for a procedural default, it must have been presented in state court as an independent claim. Murray v. Carrier, 477 U.S. 478, 489 (1986). Petitioner did not exhaust, in a PCR proceeding, a claim that appellate counsel was ineffective for failing to fairly present his defaulted claims. Ineffectiveness claims regarding counsel are now foreclosed in state court by Arizona Rule of Criminal Procedure 32.2(a)(3) and 32.4(a). Because the Arizona state courts have not had a fair opportunity to rule on ineffectiveness of appellate counsel, and Petitioner may not exhaust this claim now, it is technically exhausted but procedurally defaulted. See Gray, 518 U.S. at 161-62; Coleman, 501 U.S. at 735 n.1. Therefore, IAC on appeal cannot operate as cause unless Petitioner established cause and prejudice to excuse the default of the appellate IAC claim. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (ineffective counsel as cause can itself be procedurally defaulted). Petitioner has made no argument that there is cause to excuse the default of a claim that appellate counsel was ineffective for failing to fairly present his defaulted claims. Therefore, IAC on appeal cannot operate as cause to excuse the defaults.
Petitioner did not argue that a fundamental miscarriage of justice would result if his claims were not addressed on the merits. However, he alleged that he did not commit the crimes and retained counsel would have been able to “beat the charges.” (Doc. 19.) Although Petitioner did not allege it as a means to overcome default, the Court will evaluate it for that purpose.
To demonstrate a fundamental miscarriage of justice to excuse a procedural default, the petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). To establish the requisite probability, the petitioner must show that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. The Supreme Court has characterized the exacting nature of an actual innocence claim as follows:
[A] substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. . . . To be credible, such a claim 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 - that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.Id. at 324; see also House v. Bell, 547 U.S. 518, 538 (2006). Petitioner does not identify any new reliable evidence to support such a claim. Therefore, Petitioner has not established a fundamental miscarriage of justice will occur if his defaulted claims are not heard on the merits.
MERITS
The Court will address Claims 4, 9, and 10 on the merits.
Legal Standards for Relief under the AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) created a “highly deferential standard for evaluating state-court rulings' . . . demand[ing] 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)). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication:
(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). The last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005).
“The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify 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 Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).
The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is “contrary to” the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the “unreasonable application” prong of § 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 the principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent “unreasonable, ” the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Visciotti, 537 U.S. at 25. “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.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at 473-74; Miller-El II, 545 U.S. at 240.
Analysis Claim 4
Petitioner alleges his 5th, 6th, and 14th Amendment rights were violated by the absence of a fair and impartial jury. Specifically, he was removed from the courtroom during the aggravating factors phase of the trial, due to an outburst, which caused some of the jurors to worry for their safety. And, he alleges that the aggravating factors were not supported by sufficient evidence.
Petitioner also alleges that the “state only had 3 potential factors but the state claimed there were 8.” (Doc. 9 at 9.) Petitioner did not tie this allegation to a constitutional violation. Further, as explained by the Arizona Court of Appeals, “because the court imposed a maximum sentence, rather than an aggravated sentence, the imposition of that sentence only required the court to find a single aggravating factor. See A.R.S. §§ 13-1406(B); 13-703(D), (J); 13-701(C).” (Doc. 9-10 at 10-11.) Therefore, even it was error for the state to assert eight aggravating factors, it was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (holding that error is harmless if it did not have a “substantial and injurious effect or influence in determining the jury's verdict.”).
On direct appeal, the court summarized the factual background relevant to these allegations:
During the portion of the trial on the aggravating circumstances the state had alleged, Graff “unscrewed the top of the water pitcher and threw water at” the prosecutor. Graff threw only the water, and not the pitcher it was in, and the water “splashed all over the floor” but did not hit the prosecutor. The court asked Graff's counsel if there was any objection to Graff being removed from the courtroom, and his counsel replied that there was not, stating “I don't think that's going to harm the defendant's interests at this point.” Graff was removed from the courtroom for the remainder of the proceedings, including the return of the verdicts on aggravating factors. The court did not offer Graff an opportunity to return.(Doc. 9-10 ¶ 13.)
Petitioner's Removal from the Courtroom
The court of appeals made the following findings and denied this claim:
Here, from the cold record, it is unclear whether Graff's behavior justified a conclusion that removal was necessary for the safety of the courtroom. The water did not hit the prosecutor and the record does not reflect that Graff took any other action against any other person in the room. However, Graff had demonstrated his willingness to take physical action against persons in the
courtroom. And a trial court is in the best position to judge a defendant's actions and demeanor and to make the determination whether removal is necessary for the safety of those in the courtroom. See Allen, 397 U.S. at 343 (“[T]rial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.”); United States v. Shepherd, 284 F.3d 965, 967 (8th Cir. 2002) (trial court's decision to remove defendant accorded “great deference”), quoting Scurr v. Moore, 647 F.2d 854, 858 (8th Cir. 1981). Accordingly, we cannot say the court erred in removing Graff from the courtroom without warning and without providing him an opportunity to return.(Id. ¶ 16.) For the portion of the trial on aggravating factors, counsel agreed that they would not be presenting additional evidence, that it would consist solely of argument. (Doc. 18, Ex. II at 57, 64.) Petitioner threw the water close to the end of the prosecutor's initial argument. (Id. at 67.)
“[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). The presentation of evidence was complete, and his counsel did not believe Petitioner's absence would be detrimental. See Id. at 747 (“there is no indication that respondent ‘could have done [anything] had [he] been at the [hearing] nor would [he] have gained anything by attending.'”) (quoting United States v. Gagnon, 470 U.S. 522, 527 (1985)). Because Petitioner has not identified any way in which his presence during counsel argument would have advanced the fairness of the aggravating factors portion of the trial, his exclusion did not violate his right to due process. See id.
Even if Petitioner had a constitutional right to be present, a defendant may lose that right if, “after he has been warned by the judge that he will be removed [] he continues his disruptive behavior.” Illinois v. Allen, 397 U.S. 337, 343 (1970). When a trial judge is faced with a disruptive defendant, he has discretion to craft an appropriate solution to the particular circumstances. Id. In Allen, the Supreme Court addressed a situation where the trial judge issued a warning to the defendant. However, the Supreme Court has never held that a disorderly defendant's constitutional rights are necessarily violated by removal without warning. See Henry v. Haws, 586 Fed.Appx. 359, 359-60 (9th Cir. 2014) (citing circuit disagreement on whether a warning is mandatory). Because there is no clearly established federal law requiring a warning prior to removal of a defendant, Petitioner cannot obtain relief under the AEDPA based solely on the absence of a warning. See Musladin, 549 U.S. at 74-77 (denying relief because, although the Court had opined on the constitutionality of certain government-sponsored courtroom practices it had not passed on spectator conduct in the courtroom).
Finally, even if Petitioner's removal from the courtroom amounted to constitutional error actionable under the AEDPA, it would be subject to a harmless error analysis. See Rushen v. Spain, 464 U.S. 114, 119 n.2 (1983) (citing Snyder v. Massachusetts, 291 U.S. 97, 114-118 (1934)). The relevant question is whether the constitutional error at issue “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). If we are in “grave doubt” as to whether the error had such an effect, “that error is not harmless.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995). Here, Petitioner has not identified any influence his removal had on the jury's findings as to aggravating factors. Counsel avowed that Petitioner's presence was not critical to the remainder of the proceeding. Although Petitioner argues that the jurors were fearful of him, that was due to his conduct not his removal from the courtroom. The Court finds that Petitioner's removal for the limited remainder of argument on aggravating factors did not have a substantial effect on the jury's findings.
For all these reasons, the court of appeals' decision - that the trial court's removal of Petitioner, after he had a physical outburst directed at the prosecutor, was within its discretion - was not an objectively unreasonable application of clearly established federal law. See Renico v. Lett, 559 U.S. 766, 776-78 (2010) (applying “dual layers of deference” as required by both the AEDPA and the discretion imbedded in the applicable substantive law).
Jury Impartiality
Petitioner argues that the jury tasked with deciding the aggravating factors was scared of him after the water-throwing incident and, therefore, not impartial. After Petitioner was removed from the courtroom for throwing water, two jurors submitted notes to the judge. (Doc. 18, Ex. II at 69.) Both of the notes asked about Petitioner's access to their biographical information, concerned that he had seen their names during voir dire. (Id. at 69-70.) The court explained that, once the jury was selected, the jurors' biographical information was returned to the court and the defendant no longer had access to it. (Id. at 70-71.) The jurors did not ask any further questions and argument on the aggravating factors resumed. (Id. at 71.) The court of appeals denied this claim, finding that “[b]ecause any potential prejudice in the jury was brought about by Graff's own actions, we will not allow him to be rewarded on appeal for his own misconduct.” (Doc. 9-10 ¶ 18.)
The Supreme Court recognizes that “the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent' jurors.” Irvin v. Dowd, 366 U.S. 717, 722. Petitioner does not challenge the juror's impartiality at the start of trial. He questions the juror's bias only in reaching a decision on aggravating factors, which occurred after he threw water at the prosecutor. The Supreme Court has never held that a defendant is entitled to relief if his behavior in front of the jury calls into question the impartiality of one or more jurors. Because there is no clearly established federal law on point, Petitioner cannot obtain relief under the AEDPA on this part of Claim 4. See Musladin, 549 U.S. at 74-77.
Sufficiency of the Evidence
Petitioner argues that two aggravating factors were not supported by sufficient evidence: financial harm to the victim and threatening to inflict serious physical injury. When reviewing a sufficiency of the evidence claim, the Court applies a double-deference standard under the AEDPA:
The evidence is sufficient to support a conviction whenever, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And a state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the “decision was ‘objectively unreasonable.'”Parker v. Matthews, 567 U.S. 37, 43 (2012) (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)). The same rational fact finder standard applies when reviewing the sufficiency of the evidence underlying aggravating factors. Lewis v. Jeffers, 497 U.S. 764, 782 (1990).
With respect to the aggravating factor of financial harm, the court of appeals found:
[E]ven assuming arguendo that H.A. lost her job for reasons unrelated to the assault, she testified that she was not able to work for a month following the attack, which is sufficient to demonstrate financial harm. Additionally, photographs of H.A.'s injuries show bruises and abrasions to her face and body that would have affected her ability to make money as a cabaret dancer. The jury's finding of financial harm was supported by sufficient evidence.(Doc. 9-10 ¶ 21.) Petitioner argues that it is unknown why the victim lost her job and that her job did not require her to work a set schedule. This Court must presume correct any facts found by the state court unless Petitioner rebuts the findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Petitioner has not rebutted the appellate court's findings that the victim was unable to work for a month and that her physical injuries would have impacted her ability to earn money at her job. In light of these facts, it was not objectively unreasonable for the court of appeals to find sufficient evidence supported the aggravating factor of financial harm.
In finding sufficient evidence to support the aggravating factor that Petitioner threatened to inflict serious physical injury, the court of appeals cited the following:
The evidence showed Graff choked H.A. four times and beat her so badly that she lost consciousness three or four times. Based on common sense and experience, reasonable jurors could conclude that such conduct threatened the infliction of serious physical injury because it created a reasonable risk of death.(Doc. 9-10 ¶ 22.) Petitioner argues that the victim suffered only a bloody nose. His argument is unsupported by citation to evidence and does not rebut the appellate court's findings of fact. See 28 U.S.C. § 2254(e)(1) (requiring the habeas court to presume correct fact finding by the state courts). Therefore, this Court accepts the findings that Petitioner choked the victim four times and beat her to the point of losing consciousness. Based on those facts, it was not objectively unreasonable for the court of appeals to find sufficient evidence supported the aggravating factor that Petitioner threatened to inflict serious physical injury.
Even if there was error in finding these two aggravating factors for purposes of sentencing, the error would be subject to harmless error review. Washington v. Recuenco, 548 U.S. 212, 222 (2006). Therefore, the Court asks whether any error with respect to these aggravating factors had a substantial and injurious effect in determining the sentence. See Brecht, 507 U.S. at 637-38. As found by the Arizona Court of Appeals, the trial court imposed a maximum sentence, which requires only one aggravating factor, which is lower than the requirements for an aggravated sentence. (Doc. 9-10 ¶ 25 (citing A.R.S. §§ 13-1406(B); 13-703(D), (J); 13-701(C)). The jury found multiple aggravating factors. Here, Petitioner challenges only two of them. Even if the two he challenges were not supported by substantial evidence, each of the others found by the jury could support the maximum sentence imposed. Therefore, any error was harmless. Hall v. Almager, No. CV 08-2373-AG CW, 2014 WL 438368, at *24-25 (C.D. Cal. Jan. 31, 2014) (finding error harmless because only one aggravating factor needed for upper-term sentence and at least one factor was not in grave doubt under harmless error standard). The state court's denial of this claim was not objectively unreasonable.
Claim 9
Petitioner alleges his 5th Amendment right against self-incrimination was violated when (a) the police arrested him in the present case on false accusations in retaliation for not speaking to them about prior criminal allegations against him, and (b) he did not testify at trial because the state could have used the other charges against him. The self-incrimination clause of the Fifth Amendment protects a person from being compelled to give evidence against oneself in a criminal proceeding. Chavez v. Martinez, 538 U.S. 760, 772 (2003). Here, Petitioner alleges that he chose not to speak to officers and did not testify at his trial. These allegations represent Petitioner invoking his rights under the self-incrimination clause of the Fifth Amendment, rather than those rights being violated. Petitioner offered no support for his conclusory allegation in subpart (a) that the police retaliated against him because of a prior invocation of his Fifth Amendment rights. His allegation, that officers arrested him on baseless charges, is unfounded because a jury subsequently found him guilty of those charges. There also is no factual support for subpart (b) of Petitioner's claim. As discussed below (in Claim 10(d)), the trial judge assured Petitioner that, if he chose to testify, the state would not mention the other charge pending against him. Therefore, the other pending case did not impact his ability to testify at trial. In sum, Petitioner's Fifth Amendment claim fails on the merits.
Claim 10
Petitioner alleges counsel failed to: (a) present a doctor and doctor's report to the jury to undermine the victim's testimony that she was clear-headed the night of the crime; (b) inform him of a plea deal; (c) present testimony that he was known to the victim, which would have impeached her testimony; (d) obtain dismissal of a separate charge, which prevented him from testifying; (f) move for a mistrial based on admission of the photographs of his body; and (g) obtain video evidence.
Standard for IAC Claims
IAC claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.
The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. Thus, to satisfy Strickland's first prong, deficient performance, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id.
A petitioner must affirmatively prove prejudice. Id. at 693. To demonstrate prejudice, he “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Claims 10(a), (c), (d), (f), and (g)
Petitioner alleges counsel failed with respect to numerous discovery and trial decisions. The PCR court treated these claims as a group that alleged “ineffective trial strategy and decision-making, ” and denied them:
Defendant provided no evidence that defense counsel's strategy and decision-making fell below a reasonable standard of professional competency nor did he demonstrate a “reasonable probability” that the result of the proceeding would have been different but for the alleged deficiency. To the contrary, the record reflects that both trial and appellate attorneys provided the Defendant with competent representation. See, Elizabeth Cirillo's Notice of Finding No Colorable Claim, May 30, 2018. Judicial scrutiny of counsel's performance is “highly deferential.” Based on the fact that no evidence was provided that trial counsel's strategy and decision-making fell below the reasonable standard of professional competency, that no reasonable probability existed that would have resulted in a different outcome but for the alleged deficiency and the fact that no showing was provided that the Defendant was prejudiced by incompetent representation, the Defendant's claim, as it relates to trial strategy and decision-making is denied.(Doc. 9-8 at 19 (internal citations omitted).)
Claim 10(a)
Petitioner argues that, if counsel had gotten the doctor's report admitted from the victim's emergency room visit, he would have won the trial. He contends that report would have established that the victim was in a multi-drug-induced psychosis, which would have contradicted her trial testimony that she was sober and had not taken cocaine on the day of the crime.
The trial judge reviewed the hospital report that counsel sought to have admitted and discussed its content with counsel. (Doc. 18, Ex. HH at 62-77.) The emergency room doctor observed the victim to be hyperactive and agitated. (Id. at 62.) That doctor also reported that she was emotionally unstable and had a history of schizoaffective disorder and bipolar disorder. (Id. at 62.) An attending surgeon documented a secondary diagnosis of psychosis not otherwise specified. (Id. at 62-63.) Counsel pointed out that the surgeon recorded the victim as displaying disordered thought content, abnormal recent memory, and abnormal remote memory; and that she was responding to internal stimuli, perseverating, and delusional. (Id. at 63-64.) The judge pointed out that the foundation for such findings by a consulting surgeon is unknown and the victim had sustained an extended beating to the head. (Id. at 64, 65.) The judge identified three inconsistent drug screens: one negative for all substances, a rapid screen positive only for amphetamines, and a third test positive for amphetamines, benzodiazepine, cocaine, and opiates. (Id. at 64.) The judge ruled that he would not admit the reports unless counsel brought a witness from the hospital that participated in creating the records. (Id. at 75-77.) Counsel reported that the surgeon no longer worked at the hospital and could not be brought in to testify. (Id. at 149.) The last day of trial, counsel reported that the emergency room doctor declined to testify voluntarily. (Doc. 18, Ex. II at 4.) Counsel stated, “I believe unwilling, involuntary testimony of a doctor is not going to be very helpful to the defendant, so the defense will not be presenting any evidence.” (Id.)
As to performance, counsel made several attempts to have the emergency room records admitted. First, he tried to introduce them through a nurse that performed a sexual assault exam of the victim (at a different hospital). (Doc. 18, Ex. HH at 43-45.) The court repeatedly denied counsel's request to present the records through the nurse. (Id. at 45, 56, 70-74.) Counsel engaged in extended argument with the court and opposing counsel regarding the importance of the records and how he could present them to the jury. (Id. at 54-77.) He also sent an investigator to the hospital to locate the doctors that created the records with the intent of persuading one to testify. (Id. at 52-53, 75, 125, 148-50.) Counsel recognized the potential value in the emergency room records and made a substantial effort to have them presented to the jury. When the only option left to him was the possibility of calling an unwilling witness, counsel made a strategic decision not to do so.
This Court must presume that counsel's efforts to introduce the emergency room records and decision not to do so through a hostile witness was “sound trial strategy” under the circumstances. Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (quoting Strickland, 466 U.S. at 689). Petitioner bears a heavy burden to overcome this presumption and establish counsel's strategy was deficient. Id. (noting that courts defer to counsel's strategy when based on his professional judgment). Petitioner argues only that the emergency room records were his best evidence and counsel failed to introduce it. However, counsel pressed the court to admit the evidence. Petitioner has not overcome the presumption that counsel made a reasonable strategic decision not to call a hostile witness when that was the only remaining avenue to introduce the records.
Petitioner also fails to establish that he suffered actual prejudice from counsel's failure to introduce the emergency room records. Counsel was unable to locate the surgeon; therefore, no witness would have been able to verify his psychological observations of the victim. As noted by the trial judge, the jury may not have found weighty a surgeon's notations as to the victim's mental health status. Additionally, upon questioning from defense counsel, the victim already had testified at trial that she had been diagnosed by treating mental health providers as having depression, anxiety, bipolar, and PTSD (and other mental health professionals had identified possible schizophrenia and psychosis). (Doc. 18, Ex. GG at 94-95.) The victim testified to being on amphetamines at the time of the crime. (Id. at 71, 104.) She also testified that she was prescribed benzodiazepine by her mental health provider, but she did not believe she had taken it that day. (Id. at 104.) Inconsistent toxicology reports, only one of which documented drugs other than amphetamines, may not have carried substantial weight.
The Court has reviewed the entirety of the trial transcripts. The physical evidence from the case supports the victim's testimony. She identified the location of the crime, the physical harm inflicted by Petitioner, what she and Petitioner were wearing, and where she ran after the sexual assault. That testimony was corroborated by the police investigation of the crime scene and detention of Petitioner near the location of the crime; a nurse's report and photographs of the injuries the victim suffered; witnesses that saw the victim running away from the crime scene without any clothing on her lower half; and DNA results that documented Petitioner's semen in the victim's vagina and the victim's blood on Petitioner's face and hands. The juror's findings of guilt were supported by strong evidence at trial. In light of this evidence, which was consistent with the victim's testimony, Petitioner is unable to show that, if the victim's emergency room records had been admitted, there is a reasonable probability that he would not have been convicted on one or more charges. See Wood v. Ryan, 693 F.3d 1104, 1119 (9th Cir. 2012).
Claim 10(c)
Petitioner argues that counsel failed to call as witnesses Petitioner's roommates from 2011, who could have testified that the victim had previously spent the night at their apartment. Also, he contends he had been arrested in 2011 and the police report documented that he had the victim's prescription pills on him at that time. Both of these facts, he argues, would have undermined her testimony that she did not know him prior to the night of the crime.
If counsel had brought in witnesses to testify that Petitioner and the victim had interacted at some time in the past, it would have contradicted her trial testimony. (Doc. 18, Ex. GG at 34-35, 112.) Although the evidence could have impeached her credibility, whether the victim and Petitioner had prior contact does not prove or disprove any facts relevant to the elements of the crimes of which he was convicted. As discussed above, there was substantial trial evidence that corroborated the victim's testimony and strong evidence of Petitioner's guilt. For that reason, Petitioner has not demonstrated a reasonable probability that the outcome of the trial would have been different if counsel had presented evidence that Petitioner and the victim had met prior to the night of the crime.
Claim 10(d)
Petitioner argues that counsel failed to obtain dismissal of a separate charge against him and then advised him not to testify because the state would bring up the pending charge. First, Petitioner has not identified any basis on which counsel could have gotten the other charge dismissed prior to trial in this case. Therefore, he has not established that counsel's performance was deficient in failing to do so. Second, the trial transcript reveals that there is no factual basis for this claim. Before Petitioner made a final decision on whether to take the stand at trial, the judge notified him that the state would not bring up the pending charges if he chose to testify. (Doc. 18, Ex. HH at 146-47.) Because the pending charges in his other case were not mentioned at trial, there is not a reasonable probability that the outcome of this case would have been different if those charges had been dismissed prior to trial.
Claim 10(f)
Petitioner alleges counsel should have moved for a mistrial based on the admission of the photographs of his body. During trial, counsel objected to admission of the photographs of Petitioner's unclothed body as prejudicial because they showed his full body tattoos. (Doc. 18, Ex. HH at 114.) He offered to stipulate to the presence of blood on certain locations of Petitioner's body and the fact that his knees were red, two points for which the state wanted to use the photos. (Id.) The state did not agree to the stipulation. The judge sustained counsel's objection as to two photos showing Petitioner's backside but allowed in four of the photos. (Id. at 115.) Because the court had denied counsel's objections as to the photographs that were shown to the jury, there was no basis for counsel to move for a mistrial. Such a motion would have been denied because the court had already determined the photos probative value outweighed their prejudice.
Once counsel's objection to the photographs was resolved, in large part against him, it was not objectively unreasonable for him to witness their presentation to the jury without seeking a mistrial. Further, because there is no basis to believe the trial court would have granted a mistrial, if requested by counsel, Petitioner cannot establish prejudice.
Claim 10(g)
Petitioner alleges his attorney failed to get “video evidence that I asked for.” Petitioner does not identify what video evidence he wanted counsel to obtain or how it would have changed the outcome of the trial. Conclusory allegations that are not supported by a specific statement of facts are insufficient for habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (dismissing an IAC claim for failing to identify what evidence counsel could have presented to demonstrate the defendant was not the shooter). Claim 10(g) fails on the merits.
To the extent Petitioner is referring to video from the Circle K on the night of the crime, that evidence was admitted at trial. (Doc. 18, Ex. HH at 105, 113.)
Claim 10(b)
Petitioner alleges trial counsel was ineffective for failing to inform him of a plea offer. The PCR court denied this claim, finding:
Defendant presents no evidence that his counsel failed to inform him, and his recounting of the underlying proceedings regarding the purported failure is unclear. Furthermore, he makes no assertion and presents no evidence that such a failure did or would have prejudiced him. To the contrary, the Defendant states, “I wanted to go to trial, ” and “asking for a plea looked weak and made me look guilty.” Therefore, since the Defendant provided no evidence to support his claim or how such prejudiced him, the Defendant's claim of ineffective assistance, as it relates to failure to inform of a plea offer is denied.(Doc. 9-8 at 19.)
“[A]n attorney's failure to communicate [a] plea offer to his client constitutes unreasonable conduct under prevailing professional standards, ” which satisfies the first prong of Strickland. United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994), as amended (May 6, 1994). “In order to prove prejudice where counsel fails to inform the petitioner about a plea offer, the petitioner must prove there was a reasonable probability he would have accepted the offer.” Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997). Assuming Petitioner could satisfy the performance prong by establishing that a plea offer existed, and counsel failed to tell him about it, he has not alleged that he suffered actual prejudice. He did not identify the terms of a plea offer or allege that he would have taken the plea if he had known about it. For that reason, this claim fails on the merits.
Conclusion
As to each of the IAC subclaims, the Court has concluded that Petitioner is unable to establish that counsel's performance was deficient or that he suffered prejudice, or both. Therefore, it was not objectively unreasonable for the state court to deny these claims.
CONCLUSION AND RECOMMENDATION
Petitioner failed to fairly present Claims 1-3, 5-8, and 11-13; therefore, they are technically exhausted and procedurally defaulted. Petitioner's allegations of a Ninth Amendment violation, with respect to Claims 5-12, are technically exhausted and procedurally defaulted; the claims also are without merit. Petitioner has not established cause and prejudice to overcome the defaults or that a fundamental miscarriage of justice will occur if these claims are not addressed on the merits. The 4th Amendment allegations of Claims 6 and 7 also are barred from review in this Court by Stone, 428 U.S. at 494. Claims 4, 9, and 10 fail on the merits. Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order Dismissing the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-19-588-TUC-RCC.