Opinion
CV-21-01307-PHX-DGC (JZB)
06-15-2022
Glenn Greer, Petitioner, v. David Shinn, et al., Respondents.
DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
Petitioner Glenn Greer has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Doc. 1.)
I. Summary of Conclusion.
Petitioner was convicted of, inter alia, conspiracy to commit first-degree murder. Petitioner raises three grounds for relief from his convictions. However, because the first and second grounds are without merit and the third is procedurally defaulted without excuse, the Court recommends that the Petition be denied and dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
The Arizona Court of Appeals summarized the facts of the case as follows:
The Court presumes the Arizona Court of Appeals' recounting of the facts is correct. 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995).
In 2014, Greer was incarcerated in the Arizona Department of Corrections (ADOC) and was on “probate status” with the Arizona Aryan Brotherhood (AAB) gang. Before his release, Greer's status “was revoked,” but he maintained contact with the AAB. That same year, an AAB member, David Bounds, while incarcerated, wanted to kill a prosecution witness in his upcoming first-degree murder trial. He recruited Eric Olson, an AAB member who had been released from prison, to kill the witness, and directed another inmate Larry Wilson, upon his release, to assist Olson and “make sure that [the] murder took place.” Bounds also told Wilson that Greer would be “in place” and “could line [Wilson] up with any guns or anything that [he] needed.” Unbeknownst to Bounds, Wilson was cooperating as an informant with the Correctional Intelligence Task Force with ADOC.
After his release in May 2015, Wilson met with Greer, who had also been released, to obtain a firearm to kill the witness. Wilson was also to determine Greer's “mindset” regarding “[w]hether or not he wanted to regain his status within the [AAB] organization” as a “patch member” by participating in the homicide. After the meeting, Wilson gave the firearm he had obtained from Greer to law enforcement.State v. Greer, No. 2 CA-CR 2018-0080, 2020 WL 1862300, at *1 (Ariz.Ct.App. Apr. 13, 2020) (alterations in original). A grand jury in Pinal County Superior Court indicted Petitioner with conspiracy to commit first-degree murder (Count One), assisting in a criminal street gang (Count Two), knowingly supplying a firearm to another person with knowledge it would be used in the commission of a felony (Count Three), and possessing a firearm while a prohibited possessor (Count Four). (Doc. 13-1, Ex. A, at 3-4.) Petitioner was convicted as charged at trial and sentenced to consecutive and concurrent prison terms, including life without the possibility of parole for 25 years. (Doc. 13-3, Ex. Z, at 60-66.)
B. Direct Appeal.
Petitioner appealed his convictions to the Arizona Court of Appeals. (Doc. 13-4, Ex. AA, at 3-5.) Petitioner filed an Opening Brief (doc. 13-4, Ex. BB, at 7-56); the State answered; (doc. 13-4, Ex. CC, at 58-89); and Petitioner replied (doc. 13-4, Ex. DD, at 91-101). The Arizona Court of Appeals affirmed the convictions and the sentences as corrected. (Doc. 13-4, Ex. EE, at 103-16.) The Arizona Supreme Court denied review on July 28, 2020. (Doc. 13-4, Ex. FF, at 118; see Doc. 1-1 at 18-34 (petition for review).) On December 14, 2020, the Arizona Court of Appeals issued its mandate. (Doc. 13-4, Ex. GG, at 120.)
The court of appeals corrected inconsistencies between the oral pronouncement of the sentences and the sentencing order. (Doc. 13-4, Ex. EE, at 115.) At sentencing, the court had stated the sentences for Counts Two, Three, and Four would be concurrent with one another and consecutive to Count One and the sentences for Counts Two and Three would be the presumptive 11.25-year term. (Id.) The sentencing order, however, stated that the sentences for Counts Three and Four were concurrent with the sentences for Counts One and Two and that the term for Counts Two and Three would be 11.75 years. (Id.) The court of appeals adjusted the sentences to reflect the oral pronouncement. (Id. at 115-16.)
C. Post-Conviction Review.
Petitioner filed PCR notices in Pinal County Superior Court on September 14, 2020 and December 18, 2020. Doc. 13-4, Ex. HH, at 125. According to information obtained from the Arizona Supreme Court's website, Petitioner filed an additional PCR notice on March 23, 2022. See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (search by case number CR2015-03228, last accessed June 9, 2022). To date, Petitioner has not filed a PCR petition. See id.
The Court takes judicial notice of this information pursuant to Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: . . . (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably be questioned.”).
The Service Order warned Petitioner that the Court would likely be unable to consider any additional claims raised during his PCR proceeding in a subsequent federal action unless Petitioner obtained authorization from the Ninth Circuit to file a second or successive habeas petition. (Doc. 8 at 2.) Petitioner was given the option to voluntarily dismiss the present petition without prejudice so as to preserve his ability to file a new habeas petition upon the conclusion of his PCR proceeding without having to seek authorization from the Ninth Circuit. (Id. at 2-3.) However, he did not elect to do so.
III. Petition for Writ of Habeas Corpus.
On July 28, 2021, Petitioner filed the present Petition, raising three grounds for relief. (Doc. 1.) In the September 14, 2021 Service Order, the Court summarized Petitioner's claims as follows:
In Ground One, Petitioner claims that he was denied his right to an impartial jury, in violation of the Sixth and Fourteenth Amendments.
In Ground Two, Petitioner asserts that his right to a speedy trial under the Sixth and Fourteenth Amendments were violated.
In Ground Three, Petitioner claims that his Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated when state and local officials monitored, recorded, and disseminated recordings of his telephone calls with his attorney and read and photocopied legal documents taken from his cell during cell searches.(Doc. 8 at 2.) Respondents argue Ground One is without merit, Ground Two is without merit in part and noncognizable in part, and Ground Three is procedurally defaulted without excuse. (Doc. 13.) Petitioner did not reply.
Respondents argue the portion of Ground Two claiming a violation of Ariz. R. Crim. P. 8 is noncognizable. (Doc. 13 at 11-12; see Doc. 1 at 7.)
The Court had granted Petitioner's motion for an extension of time to file a reply. (See Docs. 14, 15.) However, Petitioner took no further action.
IV. Legal Standards.
A. Requisites for Federal Review.
1. Cognizable Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). Because “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” Estelle, 502 U.S. at 63, “federal habeas corpus relief does not lie for errors of state law,” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citations omitted). A petitioner “may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.” Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires the prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). In Arizona, claims of Arizona prisoners not sentenced to death are exhausted through “fair presentation to the Arizona Court of Appeals.” Date v. Schriro, 619 F.Supp.2d 736, 763 (D. Ariz. 2008); see also Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007) (noting Arizona's “standard review process for cases carrying life sentences” does not include discretionary review by the Arizona Supreme Court).
3. Absence of State Procedural Bar.
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. A claim is barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies 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.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under Ariz. R. Crim. P. 32.2(a)(3), a defendant is precluded from relief on any constitutional claim “waived 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.” Unless it falls within the exception, a claim is waived if “the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding.” Stewart v. Smith, 202 Ariz. 446, 449 (2002) (citation omitted). To obtain review of a procedurally defaulted claim, a petitioner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005).
B. Standard of Review.
To obtain a federal writ of habeas corpus, a petitioner must show the state court's adjudication of the claim:
(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). “[T]he ruling must be ‘objectively unreasonable, not merely wrong; even clear error will not suffice.'” Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (citation omitted). “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, 562 U.S. 86, 101 (2011) (citation omitted).
V. Discussion.
A. Ground One lacks merit under 28 U.S.C. § 2254(d).
Petitioner claims he was denied his Sixth and Fourteenth Amendment rights to an impartial jury because two jurors, after hearing two days of witness testimony, wrote letters to the trial judge expressing “fear” and an “inability to be impartial and fair.” (Doc. 1 at 6.) Petitioner alleges the judge “held voir dire of some but not all jurors and those voir dired (at least 8) gave conflicting testimony implicating themselves and multiple other jurors (some said all jurors) deliberating material facts and safety concerns about witness testimony” and that “several jurors outright lied.” (Id.) Petitioner, therefore, claims the trial judge failed “to uphold the law and U.S. Constitution, resulting in a biased, unfair jury and eventual wrongful conviction based on personal fears and prejudice.” (Id.) Petitioner claimed the same on appeal (doc. 13-4, Ex. BB, at 18-43), and these claims are exhausted. Date, 619 F.Supp.2d at 763; Crowell, 483 F.Supp.2d at 933.
Petitioner further alleges in Ground One that the spouse of one juror worked for Border Patrol, which had allegedly been involved in the investigation of him by the FBI violent street gang task force, and that “the State's case agent ‘Keland Boggs' was assigned creating a further undo prejudice against [him].” (Doc. 1 at 6.) However, he did not present these particular claims on appeal and therefore they are unexhausted. Further, they are implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from exhausting them in state court now. Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987. Petitioner makes no attempt to excuse the default. As such, the Court recommends these claims be dismissed as procedurally defaulted.
1. Law.
The Fourteenth Amendment guarantees the right to be tried by an “impartial and indifferent” jury in accordance with the Sixth Amendment. Morgan v. Illinois, 504 U.S. 719, 726-27 (1992). The trial judge is responsible for ensuring this right is preserved. Skilling v. United States, 561 U.S. 358, 386 (2010) (“Jury selection . . . is ‘particularly within the province of the trial judge.'” (citation omitted)). Because the assessment of a juror's impartiality is “ordinarily influenced by a host of factors impossible to capture fully in the record” (e.g., “the prospective' juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty”), reviewing courts defer to the trial court's findings regarding a juror's ability to be impartial. Id.
2. Adjudication on Appeal.
The events during trial underlying Petitioner's claim were summarized by the Arizona Court of Appeals as follows:
During voir dire, conducted in Greer's presence, prospective jurors were asked to state their names, residences, employment, and details about their family. Later, a gang specialist with the Correctional Intelligence Task Force testified that AAB members gather information to “target” and kill people on behalf of the AAB. The next morning, two jurors submitted notes to the trial court, one anonymously and the other signed by Juror 13, expressing concerns about juror safety. One of the notes explained there had been conversations among some of the jurors regarding their safety.
The trial court determined that going forward, jurors would be identified by number instead of name and that the voir dire transcripts would be sealed. The court also reviewed the notes Greer had made during voir dire, confirmed he had not removed them from the courtroom, and notified the jury of the precautions it had taken as it questioned the jurors individually outside of Greer's presence. Nine of the jurors revealed there had been discussions about safety concerns, yet each juror assured the court that they could be fair and impartial or were otherwise unconcerned. Specifically, Juror 13 expressed satisfaction with the court's measures, and further stated, “[a]s long as everything is wiped and sealed, that's fine.”
Greer moved for a mistrial arguing that the jurors had violated the trial court's admonition to not discuss the case and “[t]his whole jury panel has been polluted.” Greer claimed, “The [jurors'] interpretation of fair and impartial at this point is get the case over, we [wi]ll get this guy, and we [wi]ll convict him and send him off, and we [ will cross our fingers and hope that he does [not] send his friends after us.” The court denied the motion stating that “all 14 [jurors] said that they could be fair and impartial” and “any discussions that may have been had had absolutely nothing to do with
the issue that bear[s] on their ultimate role as jurors.” Greer renewed his motion the next day of trial, arguing the state “developed in great length” through testimony “what the Aryan Brotherhood could and would do to you” and “[the court] simply can[not] remove that taint.” Greer further maintained that the jury must have thought, “We convict him on all these things. Based on what we [ha]ve heard, he [is] going to go away for a long, long time, and we [will not] have to worry about him” and therefore they were “tainted.” The court again denied the motion.
When trial resumed, the evidence presented by the state included testimony regarding Greer's violent history and that he had sent a note to AAB members warning of Wilson's cooperation with ADOC. At the trial's conclusion, two alternate jurors were chosen, Juror 5 and Juror 12, and only the twelve remaining jurors participated in deliberations. The author of one of the notes-Juror 13-and potentially the author of the anonymous note participated in deliberations.
Following his conviction, Greer filed a motion for a new trial, arguing he “was denied due process and denied a fair trial.” Specifically, Greer claimed that “Jurors discussing being afraid of the defendant and whether their personal safety was in jeopardy prior to deliberations is juror misconduct, and as a result, a new trial is warranted. The trial court denied the motion.(Doc. 13-4, Ex. EE, at 105-06 (alterations in original).)
The Arizona Court of Appeals found no abuse of discretion in the trial court's denial of Petitioner's motions for a mistrial and a new trial. (Doc. 13-4, Ex. EE, at 107-09.)
Greer relies on United States v. Blitch, 622 F.3d 658 (7th Cir. 2010), to support his argument that the trial court's actions were insufficient to protect his right to a fair and impartial jury. But the court here took measures not taken by the trial court in Blitch. It sealed the voir dire transcript, reviewed Greer's notes, spoke individually with the jurors, and questioned each juror regarding their ability to be fair and impartial. Based on these precautions, Batch is not instructive. Moreover, contrary to Greer's argument, it does not appear the jurors violated the court's admonition by discussing evidence in the case; instead, it appears they discussed their safety concerns. See Trostle, 191 Ariz. at 13. And the court took extensive steps to satisfy the concerns of the jury, as discussed above. See Burns, 237 Ariz. 1, ¶ 110. Because the court was in the best position to assess whether jurors could be fair and impartial, see Blackman, 201 Ariz. 527, ¶ 13, we cannot say the court abused its discretion by denying the motion for a mistrial, see Lehr, 277 Ariz. 140, ¶ 43.(Id. at 108.)
The district judge in Blitch “did not individually question the jurors at issue.” United States v. Blitch, 622 F.3d 658, 667 (7th Cir. 2010).
3. Analysis Under 28 U.S.C. § 2254(d).
Because the Arizona Supreme Court did not set forth reasons for denying review of the Arizona Court of Appeals' decision (see doc. 13-4, Ex. FF, at 118), the Court reviews the decision of the Arizona Court of Appeals in conducting its analysis under 28 U.S.C. § 2254(d). See Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016). A state court's finding regarding the impartiality of a juror is entitled to a presumption of correctness, rebuttable only upon a showing of clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Patton v. Yount, 467 U.S. 1025, 1038 (1984) (noting “the question is whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial”); Thompson v. Keohane, 516 U.S. 99, 111 (1995); Murray v. Schriro, 882 F.3d 778, 803 (9th Cir. 2018) (noting on habeas review that federal courts “must give deference to the trial court's assessment of the impartiality of potential jurors”).
Juror bias is analyzed under two theories: actual bias and implied bias. Fields v. Woodford, 309 F.3d 1095, 1103 (9th Cir. 2002), amended, 315 F.3d 1062 (9th Cir. 2002). Regarding actual bias, “[w]hether a jury was biased is a question of fact” that is entitled to a presumption of correctness. Casey v. Moore, 386 F.3d 896, 910 (9th Cir. 2004). Petitioner “must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984). “While actual bias may be revealed by a juror's explicit admissions, more typically it is demonstrated through circumstantial evidence.” United States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013).
Because the United States Supreme Court has never explicitly recognized an implied bias theory, Petitioner is not entitled to habeas relief on a theory of implied bias. See Hedlund v. Ryan, 854 F.3d 557, 575 (9th Cir. 2017) (“The Supreme Court has never explicitly adopted or rejected the doctrine of implied bias” so “Hedlund's claim fails on grounds of implied biass'). Petitioner also fails to demonstrate implicit bias because he fails to establish a juror lied or there was the “potential for substantial emotional involvement, adversely affecting impartiality, inherent in certain relationships” between the parties. Fields, 309 F.3d at 1104.
Here, Petitioner fails to prove the decision of the Arizona courts was contrary to or an unreasonable applicable to clearly established federal law. Petitioner argues that multiple jurors told the court they were “deliberating material fact and safety concerns” during trial, which meant that “several jurors outright lied” to the court when they denied discussing the evidence during trial. (Doc. 1 at 6.) First, jurors are not prohibited from discussing a fact of case prior to deliberations. See United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004) (“Not every comment a juror may make to another juror about the case is a discussion about a defendant's guilt or innocence that comes within a common sense definition of deliberation.”). There is also no clearly established federal law prohibiting jurors from discussing the facts of a case prior to deliberation. See United States v. Waldron, 756 Fed. App'x. 789, 800 (10th Cir. 2018) (“No Tenth Circuit or Supreme Court precedent has held that a district court commits error by allowing jurors to discuss a case before deliberations begin.”). Because a juror could discuss a fact of the case without deliberating, Petitioner fails to establish that any juror lied about “deliberating a material fact.”
Finally, Petitioner fails to demonstrate the decision of the Arizona Court of Appeals regarding juror bias was clearly unreasonable. The court found the individual questioning of each juror sufficient for the trial judge to conclude each juror could be fair and impartial. Petitioner does not dispute that each juror stated the juror could be fair and impartial. Petitioner submits no additional facts to rebut the state court findings. See also United States v. Smith, 919 F.3d 825, 835 (4th Cir. 2019) (affirming denial of mistrial where jurors feared gang retaliation and noting trial judges are owed great deference regarding juror bias); United States v. Sanchez, 850 Fed. App'x. 472, 478 (9th Cir. 2021) (stating that a court is “well within its discretion in addressing the topic of juror safety”). The Court concludes that the Arizona Court of Appeals' rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, the Court recommends Ground One be denied for lack of merit under 28 U.S.C. § 2254(d).
B. Ground Two lacks merit under 28 U.S.C. § 2254(d).
Petitioner claims he was denied his right to a speedy trial in violation of the Sixth and Fourteenth Amendments, despite having asserted the right and having “refused any waiver of tollable days.” (Doc. 1 at 7.) Petitioner alleges that neither he nor his counsel “ever filed a motion for continuance” and that he himself “argued openly in court against any delay of trial several times.” (Id.) He further alleges counsel “illegally signed a stipulation of time” against his instruction. (Id.) Ground Two was fairly presented on appeal (doc. 13-4, Ex. BB, 46-51) and is therefore exhausted. Date, 619 F.Supp.2d at 763; Crowell, 483 F.Supp.2d at 933.
Petitioner also claims Ariz. R. Crim. P. 8 was violated. (Doc. 1 at 7.) However, issues of state law are noncognizable on habeas review. Swarthout, 562 U.S. at 219. Accordingly, the Court recommends this claim be dismissed as noncognizable.
1. Law.
The Sixth Amendment guarantees a “right to a speedy and public trial” that is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515 (1972). However, there is no set time period within which a trial must be held. As the Supreme Court noted in Barker:
the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.Id. at 521; see also Beavers v. Haubert, 198 U.S. 77, 87 (1905) (“The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.”). Thus, whether the right has been respected is determined “on an ad hoc basis” utilizing a balancing test that considers “the conduct of both the prosecution and the defendant” and “the peculiar circumstances of the case.” Barker, 407 U.S. at 530-31. In Barker, the Court identified four factors for courts to consider: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Id. at 530. These factors are “considered together with such other circumstances as may be relevant”; none is “a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Id. at 533.
2. Adjudication on Appeal.
On appeal, Petitioner claimed his Sixth Amendment right to a speedy trial had been violated because 26 months elapsed between his arraignment on November 6, 2015 and when trial began on January 9, 2018. (Doc. 13-4, Ex. BB, at 46-47 & n.25.) Petitioner attributed the delay to “disclosure issues . . . due to the nature and source of the information, the prosecutor's unwillingness to provide information, and changes in the potential witnesses.” (Id. at 47.) Petitioner argued he had been prejudiced by the delay because jail officers and law enforcement officials had “seized documents from [his] cell including legal mail, attorney-client letters, pleadings, legal notes, and [his] paperwork including the names and contact information for potential witnesses.” (Id.) He further alleged that his legal calls had been “monitored and recorded” and that his trial counsel had received a “threatening letter” from the Pinal County Sheriff's office. (Id. at 48.) Petitioner argued that these events had “hindered [his] ability to prepare his defense . . . and chilled his ability to meaningfully communicate with his counsel.” (Id.)
The Arizona Court of Appeals considered the Barker factors and found no violation of Petitioner's speedy trial right. (Doc. 13-4, Ex. EE, at 113-15.) It stated:
As to factors one and two, Greer contends the delay of twenty-six months between arraignment and trial was largely due to disclosure issues, “the prosecutor's unwillingness to provide information, and changes in the potential witnesses.” We recognize such a delay is significant. But, as described above, Greer agreed to and requested various continuances, due to requests for disclosure and new counsel. Additionally, the delay from October 24, 2017 to January 9, 2018 was at Greer's request, based on his counsel's trial schedule and health. These delays may be attributed to Greer. Accordingly, factor two weighs against him.
Turning to factor three, Greer argues he asserted his speedy trial right in November 2016, which the state concedes. However, the state asserts that he did not do so “promptly.” We disagree with the state, as Greer asserted his right approximately fourteen months before he was tried. Accordingly, this factor weighs in Greer's favor.
As to factor four, the last and most important factor, Greer argues that he was S'udiced because in September 2016, officers from county and federal gang forces “seized documents from [his holding] cell including legal mail, attorney-client letters, pleadings, legal notes, and [his] paperwork including the names and contact information for potential witnesses.” He also asserts the searches and seizures of legal papers continued through his incarceration, along with monitoring and recording of legal calls and confiscation of legal mail. Additionally, Greer's attorney received letters alleging he was sending contraband to Greer, and he expressed concerns to the trial court that this was an effort to “set [him] up.” Greer contends “[t]hese events hindered [his] ability to prepare his defense in this case and chilled his ability to meaningfully communicate with his counsel.”
It appears the trial court addressed these issues to Greer's satisfaction. The state offered to provide new disclosure to Greer's attorney. And there was no claim that the delay prevented Greer from calling witnesses, fully investigating his case, or that witnesses could not accurately recall events. Greer could communicate with his legal team in person without issue. There
is no indication that Greer's counsel did not have the complete disclosure or the ability to investigate Greer's case. Greer, therefore, has not demonstrated the delay caused him prejudice. Based on an examination of the four factors, we cannot say that Greer's Sixth Amendment right to a speedy trial was violated.(Id. (alterations in original; citations omitted).)
3. Analysis Under 28 U.S.C. § 2254(d).
As with Ground One, the Court reviews the decision of the Arizona Court of Appeals in conducting its analysis under 28 U.S.C. § 2254(d). As discussed, the court of appeals concluded the first and third Barker factors weighed in Petitioner's favor, finding the 26-month delay “significant” and that Petitioner had asserted his right to a speedy trial “approximately fourteen months before he was tried.” (Doc. 13-4, Ex. EE, at 113-14.) However, due to the countervailing weight of the second and fourth factors, the court of appeals ultimately found no violation of Petitioner's speedy trial right. (Id.) The Court, therefore, reviews the reasonableness of the court of appeals' assessment of the second and fourth factors in relation to the other Barker factors.
a. Fairminded jurists could find the defense more at fault for the delay.
The relevant question with respect to the second Barker factor is “whether the government or the criminal defendant is more to blame for [the] delay.” Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker, 407 U.S. at 530). The Arizona Court of Appeals found this factor weighed against Petitioner because he had “agreed to and requested various continuances, due to requests for disclosure and new counsel,” and the two-and-a-half month delay immediately preceding trial was the result of a continuance sought by his counsel. This was not an unreasonable determination.
On May 9, 2016, six months after his arraignment on November 6, 2015, Petitioner filed a pro se motion for appointment of new counsel, citing a difference in values and an inability to effectively communicate. (Doc. 13-1, Ex. B, at 6-7.) The court granted the motion and appointed new counsel. (Id., Ex. C, at 9.) It deferred ruling on Petitioner's pending motion to compel discovery until his new counsel had a chance to review it and continued setting trial until June 20, 2016. (Id. at 10.) Later that month, on May 31, 2016, newly-appointed counsel moved to withdraw, citing a conflict of interest. (Id., Ex. E, at 15-16.) The court granted the motion and appointed new counsel. (Id., Ex. F, at 18.) On June 13, 2016, counsel moved to withdraw, citing a conflict of interest. (Id., Ex. G, at 20.) The court granted the motion and appointed new counsel, who ultimately represented Petitioner at trial. (Id., Ex. H, at 22.)
On June 20, 2016, counsel moved to designate Petitioner's case “complex” under Ariz. R. Crim. P. 8.2(a)(3) and for the appointment of an investigator. (Doc. 13-1, Ex. I, at 24-25; Ex. J, at 28-29.) The court granted both requests and continued setting a trial date until August 1, 2016. (Id., Ex. K, at 32-33.) On October 24, 2016, counsel requested a hearing on pending motions, including Petitioner's request for additional disclosure and production of certain materials and information. (Id., Ex. L, at 35.) During a hearing on November 18, 2016, the court granted the request in part and ordered the State to respond to Petitioner's November 9, 2016 motion to compel the jail to return his legal paperwork. (Id., Ex. M, at 38-40.) During a status conference on December 5, 2016, the court denied the motion and set another status conference for January 23, 2017. (Id., Ex. N, at 42-43.)
“A defendant in a case that has been designated complex must be tried within 270 days.” (Doc. 13-4, Ex. EE, at 109 (citing Ariz. R. Crim. P. 8.2(a)(3)(C).) However, this time limit “is subject to excludable periods, including ‘those caused by or on behalf of the defendant' and ‘a time extension for disclosure under Rule 15.6.'” (Id. (citations omitted).)
At a hearing on March 3, 2017, the court set trial for October 24, 2017. (Doc. 13-1, Ex. O, at 46.) However, on October 5, 2017, counsel moved to continue trial, stating he would not be available for trial until January 10, 2018, citing overlap with another trial and medical issues. (Id., Ex. P, at 49-51.) Counsel advised the court during a status conference a week later that Petitioner objected to any continuances. (Id., Ex. Q, at 54.) However, the court granted counsel's motion and advised Petitioner of the “possible need to reschedule trial.” (Id.) The court continued trial until January 9, 2018. (Id., Ex. S, at 61.)
As the court of appeals noted, “it is unclear how [the October 24, 2017] trial date was determined.” (Doc. 13-4, Ex. EE, at 110.)
The parties stipulated that February 23, 2018 was the “last day” for purposes of Ariz. R. Crim. P. 8. (Doc. 13-1, Ex. R, at 58.)
In light of the foregoing, the Arizona Court of Appeals' conclusion that the second Barker factor weighed against Petitioner was not objectively unreasonable. “[D]elay caused by the defense weighs against the defendant.” Vermont v. Brillon, 556 U.S. 81, 90 (2009). This includes delay caused by the defendant's counsel. Id. at 90-91 (“Because the attorney is the defendant's agent when acting, or failing to act, in furtherance of the litigation, delay caused by the defendant's counsel is also charged against the defendant.” (cleaned up)). This is so, even if counsel is appointed and paid for by the State. Id. at 93 (“[D]elays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned.”); see also id. at 91 (“Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.”). Fairminded jurists could find the delay attributable to the defense-either to Petitioner directly, or indirectly through his counsel- and, therefore, like the Arizona Court of Appeals, conclude that the second Barker factor weighed against Petitioner.
Despite Petitioner's assertions to the contrary, the actions of his counsel are imputed to him for purposes of the Sixth Amendment. Id. at 90-91, 93. Delays in May and June 2016 are fairly traced to the defense, which, as noted, was undergoing several changes in representation during this time-four, to be specific-due to conflicts of interest and differences of opinion. The court had deferred ruling on a pending motion filed by a previously-appointed lawyer to allow a newly-appointed lawyer to review it and, in doing so, continued the date for setting trial until June 20, 2016. After that lawyer withdrew, a newly-appointed lawyer moved for additional discovery and the appointment of an investigator, which resulted in further continuance of the trial date until August 1, 2016. Later, that same lawyer moved for an additional continuance due to his own scheduling conflicts and medical issues, resulting in the trial, which had been set for October 24, 2017 on March 3, 2017, being continued until its final date of January 9, 2018. On this record, fairminded jurists could find the defense culpable for the delay.
b. Fairminded jurists could find Petitioner was not prejudiced by the delay.
Whether the defendant was prejudiced as a result of the delay is “assessed in the light of the interests of defendants which the speedy trial right was designed to protect,” namely: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. “Generalized assertions of the loss of memory, witnesses, or evidence are insufficient to establish actual prejudice.” United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995).
The Arizona Court of Appeals' conclusion that Petitioner had failed to show sufficient prejudice was not unreasonable. It acknowledged Petitioner's allegations regarding the seizure of his legal materials by jail officers and law enforcement but found the trial court had “addressed these issues to [Petitioner's] satisfaction.” (Doc. 13-4, Ex. BB, at 114-15.) It noted that the state had “offered to provide new disclosure to [Petitioner's] attorney” and that there was “no indication” that Petitioner's attorney “did not have the complete disclosure or the ability to investigate [Petitioner's] case.” (Id. at 115.) As noted in Barker, the defendant's ability to prepare his case is the “most serious” of the interests underlying the prejudice analysis. 407 U.S. at 532. But as the court of appeals noted, this interest-ultimately-was not undermined because any damage that had been done by law enforcement had been cured prior to trial. Most importantly, as the court of appeals noted, there was no claim “that the delay prevented [Petitioner] from calling witnesses, fully investigating his case, or that witnesses could not accurate recall events.” Petitioner does not argue this ruling was incorrect. He also does not present any argument or fact in the Petition to establish prejudice. In Barker, the Court found a lack of sufficient prejudice:
Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory-one on the part of a prosecution witness-which were in no way significant to the outcome.Id. at 534. See United States v. Robey, 831 F.3d 857, 864 (7th Cir. 2016) (finding no Speedy Trial violation for a 1076-day delay between initial appearance and trial where defendant changed lawyers, underwent a psychological evaluation, and filed “a motion to suppress, sought ten ends-of-justice continuances, and entered and withdrew from a plea agreement.”).
In sum, because fairminded jurists could agree with the Arizona Court of Appeals' findings with respect to the second and fourth Barker factors, its ultimate rejection of Petitioner's speedy trial claim was not an unreasonable application of, or contrary to, clearly established federal law. Accordingly, the Court recommends Ground Two be denied for lack of merit under 28 U.S.C. § 2254(d).
C. Ground Three is implicitly procedurally defaulted.
Petitioner claims he was denied his “right of protection against illegal search and seizure, self-incrimination, [and] legal privilege” in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments, referencing the allegations of misconduct by jail officers and law enforcement discussed in Ground Two. (Doc. 1 at 8.) Petitioner notes that he raised these claims in a civil suit that had settled. (Id.)
See Doc. 13-4, Ex. II, at 127-50 (Complaint, Stipulation to Dismiss, and Dismissal Order from Greer v. Pinal Cnty. Jail, No. CV-17-02822-PHX-DGC (JZB) (D. Ariz.)).
Ground Three is unexhausted. Although Petitioner mentioned the allegations of Ground Three in his opening brief on appeal, he did not present them as violations of the specific constitutional rights at issue in Ground Three. (See Doc. 13-4, Ex. BB, at 44.) Rather, as discussed in Ground Two, Petitioner presented these allegations solely to support his claim that he was prejudiced by the alleged denial of his right to a speedy trial. (Id.) The Arizona Court of Appeals addressed them only in that specific context. (See Doc. 13-4, Ex. EE, at 114-15.) Petitioner's presentation of these allegations as issues underlying his speedy trial claim did not constitute “fair presentation” of the present claims, which implicate constitutional rights distinct from the right to a speedy trial. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (“It is not enough [for purposes of exhaustion] that all the facts necessary to support the federal claim were before the state courts . . . .”); Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004) (“[U]nless the petitioner clearly alerts the court that he is alleging a specific federal constitutional violation, the petitioner has not fairly presented the claim.” (emphasis added)); cf. Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“[A]lthough Rose's Fifth Amendment claim is related to his claim of ineffective assistance, he did not fairly present the Fifth Amendment claim to the state courts when he merely discussed it as one of several issues which were handled ineffectively by his trial and appellate counsel. While admittedly related, they are distinct claims with separate elements of proof, and each claim should have been separately and specifically presented to the state courts.”). Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from returning to state court to properly exhaust the claims of Ground Three now, due to his failure to raise them on appeal, and therefore Ground Three is implicitly procedurally defaulted. Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987. Petitioner makes no attempt to excuse the default. Accordingly, the Court recommends Ground Three be dismissed as procedurally defaulted.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Proceedings, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here. Therefore, the Court will recommend that a certificate of appealability be denied.
VII. Conclusion.
An evidentiary hearing is not required as the record is sufficiently developed for resolution of Petitioner's claims. See Clark v. Chappell, 936 F.3d 944, 967 (9th Cir. 2019) (“An evidentiary hearing is not required . . . on issues that can be resolved by reference to the state court record.” (cleaned up)). For the reasons set forth herein,
IT IS RECOMMENDED that the Petition (doc. 1) be denied and dismissed with prejudice.
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 Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 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. Thereafter, the parties have 14 days within which to file a response to the 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 determinations 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.