Opinion
CV-19-5413-PHX-JJT (JFM)
06-11-2021
Charles D'Mon Harden, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
Petitioner was implicated in a home invasion style robbery in which the invaders posed as police officers in camouflage tactical gear. The victim identified Petitioner as a perpetrator, describing him as a bouncer at a club the victim frequented. Petitioner was later identified by that victim and another in photo lineups. A search of Petitioner's home revealed camouflage utility pants, a badge, and photographs that pictured Petitioner wearing tactical gear. (Exh. HH Mem. Dec. at ¶¶ 2-6.) (Exhibits to the Answer (Doc. 19), are referenced herein as “Exh. .”)
B. PROCEEDINGS AT TRIAL
Petitioner was indicted in Maricopa County Superior Court on one count of first- degree burglary; two counts of armed robbery; two counts of kidnapping; two counts of aggravated assault; two counts of theft; and one count of misconduct involving weapons. (Exh A, Indictment.) Petitioner unsuccessfully moved to sever his trial from that of his co-defendants. (Exh. B, Mot. Sever; Exh. HH, Mem. Dec. at ¶ 11.) Trial on the weapons misconduct count (Count 10) was severed. (Exh. HH, Mem. Dec. at ¶ 9, n. 2.) After a 21-day trial, Petitioner was found guilty as charged on Counts 1 to 9, and he subsequently entered a plea of guilty on Count 10, the weapons misconduct charge. (Id. at ¶ 10; Exh. AA, Plea Agreement.)
There were four defendants named in the indictment. One co-defendant (Simmons) was severed based on unavailability due to a medical condition. Petitioner and the remaining two co-defendants (Childress and Stegall) proceeded to trial. (Exh. E, M.E. 10/19/15.)
On May 13, 2016, Petitioner was sentenced (Exh. DD) to “aggravated, concurrent terms of 20 years' imprisonment on the burglary, armed robbery, and kidnapping counts, concurrent, aggravated terms of 15 years' imprisonment on the aggravated assault counts, concurrent, presumptive terms of three and three-quarters years' imprisonment on the theft counts, and a concurrent, presumptive term of two and one-half years' imprisonment on the misconduct involving weapons count.” (Exh. HH, Mem. Dec. at ¶ 10.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal, challenging: (a) the denial of his motion to sever from co-defendants; and (b) insufficient evidence to convict. The Arizona Court of Appeals rejected both claims on the merits and affirmed Petitioner's convictions and sentences. (Exh. HH, Mem. Dec.)
Petitioner did not seek further direct review. (Id. at Mandate.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
Prior to issuance of the mandate on direct appeal, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) (Exh. II). Counsel was appointed, but was ultimately unable to find an issue for review. (Exh. JJ, Not. of Completion.) Counsel forwarded her file to Petitioner (Exh. KK, Not. of Compliance).
Petitioner eventually filed his pro per PCR Petition (Exh. MM). Petitioner raised claims of: “(1) the introduction at trial of evidence obtained by an unconstitutional search or seizure; (2) the introduction at trial of an identification obtained in violation of constitutional rights; (3) the unconstitutional suppression of evidence by the State; (4) the existence of newly-discovered material… (5) that he was falsely arrested because the police searched his apartment without a warrant, and a witness testified that Harden was home at the time of the crimes; and (6) there was no DNA or fingerprints of Harden discovered at the crime scene.” (Exh. NN, PCR Resp. at 6.)
The state responded that: (a) the claims of insufficient evidence included in claims (5) and (6) were precluded under Arizona Rule of Criminal Procedure 32.2(a)(2) because they had been decided on direct appeal; (b) the remaining claims were waived under Rule 32.2(a)(3) because they had not been raised on direct appeal; and (c) claim (4) was not cognizable under the exceptions to Rule 32.2(a) for claims of newly discovered evidence because evidence was known and not newly discovered. (Exh. NN, PCR Resp.)
On November 2, 2018, the PCR Court dismissed the proceeding, agreeing with the state that the claims were procedurally barred under Rule 32.2. (Exh. OO, M.E. 11/2/18.)
Petitioner did not seek further review. (Petition, Doc. 1 at 5.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 15, 2019 (Doc. 1). Petitioner's Petition asserts the following grounds for relief:
(1) the trial court erred by refusing to sever his trial from his co-defendants in violation of the Fifth and Fourteenth Amendments;
(2) the jury verdict was not supported by sufficient evidence in violation of the Fourteenth Amendment and Jackson v. Virginia, 443 U.S. 307, 319 (1979);
and
(3) PCR counsel failed to raise claims of ineffective assistance of trial counsel, including: (A) failure to call alibi witnesses; (B) failure to consult with an identification expert; (C) failure to calling the most effective witnesses; and (D) failure to properly advise on a rejected plea offer.
Petitioner also argues in Ground 3 that PCR counsel was ineffective under Martinez v. Ryan, 566 U.S. 1 (2012) in failing to raise such claims. The undersigned construes Ground 3 as asserting ineffectiveness of PCR counsel as cause and prejudice, and the substantive claims: (a) ineffective assistance of PCR counsel; and (b) ineffective assistance of trial counsel. The different factual instances of trial counsel ineffectiveness in Ground 3 are referenced as Grounds 3A to 3D.
Petitioner also included what is labeled “Ground Four, ” asserting a due process violation because PCR counsel had failed to timely provide her file. On screening, the Court identified this as a claim of ineffective assistance of PCR counsel under Martinez. But Petitioner makes clear that “this claim does not constitute a separate claim, ” but was argued because “if necessary, [Petitioner] will amend his habeas petition seasonably” after receiving the file. Consequently, the undersigned does not construe this a ground for relief, but as a justification for equitable tolling of belated amendments. No such amendments have been sought.
Response - On March 4, 2020, Respondents filed their Answer (Doc. 10). Respondents argue the claims in Grounds 1 and 2 are without merit, Grounds 2 and 3 are procedurally defaulted, and the claims of ineffective assistance of PCR counsel in Ground 4 do not avoid a procedural default because the related claims of trial ineffectiveness are insubstantial.
Reply/Motion to Stay - The Court set an extended deadline of June 12, 2020 for a reply. (Order 4/6/20, Doc. 13.)
Instead, on June 15, 2020 Petitioner filed a Motion to Stay (Doc. 14) seeking to stay this case to allow him to pursue a second state PCR proceeding based on a claim of actual innocence. Petitioner provided a declaration from an attorney with the Arizona Justice Project asserting an intent to file such a PCR proceeding, citing the discovery of unspecified exculpatory evidence. The Court ultimately denied that motion, finding the stay not dispositive of a claim or procedural defense in this case, in part because Petitioner had not pursued a claim of actual innocence in this case, substantive or procedural. (Order 12/3/20, Doc. 16.)
Petitioner has not replied in support of his Petition.
III. APPLICATION OF LAW TO FACTS
A. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR
Respondents argue that most of Petitioner's claims are either procedurally defaulted or were procedurally barred on an independent and adequate state ground, and thus are barred from federal habeas review.
1. Exhaustion Requirement
Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
a. Exhaustion by Fair Presentation
Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
Proper Forum - “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Under the 1989 amendments to the governing state statutes, even cases carrying a life sentence are exhausted once ruled on by or presented to the Arizona Court of Appeals. Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007)
Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987).
Factual Basis - A petitioner must have fairly presented the operative facts of his federal claim to the state courts as part of the same claim. A petitioner may not broaden the scope of a constitutional claim in the federal courts by asserting additional operative facts that have not yet been fairly presented to the state courts. Expanded claims not presented in the highest state court are not considered in a federal habeas petition. Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982). And, while new factual allegations do not ordinarily render a claim unexhausted, a petitioner may not "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986).
Legal Basis - Failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite “book and verse on the federal constitution, ” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law, ” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).
b. Exhaustion by Actual Consideration
Although fair presentation is the normal mode of establishing exhaustion of state remedies, it is not the only method. Rather, a petitioner's state remedies are exhausted where the state courts have reached and passed on the merits of a federal claim, regardless whether the petitioner had fairly presented the claim to the state court. Castille v. Peoples, 489 U.S. 346, 351 (1989); Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002); and Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990) (state court's sua sponte consideration of an issue satisfies exhaustion). On the other hand, actual consideration of the claim is not required. “All exhaustion requires is that the state courts have the opportunity to remedy an error, not that they actually took advantage of the opportunity.” Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009).
2. Procedural Default
Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents rely upon Arizona's preclusion bar, set out in Ariz. R. Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer, Doc. 10 at 9-10.)
Remedies by Post-Conviction Relief - Under Arizona's preclusion, waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.
Preclusion Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not be brought in a petition for post-conviction relief if the claim was “[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(2).
Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel).
For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at “the nature of the right allegedly affected by counsel's ineffective performance. Id.
Here, none of Petitioner's claims are of the sort requiring a personal waiver, and Petitioner's claims of ineffective assistance similarly have at their core the kinds of claims not within the types identified as requiring a personal waiver.
Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. Ariz.R.Crim.P. 32.4 requires that petitions for post-conviction relief (other than those which are “of-right”) be filed “within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995). That time has long since passed.
Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. Nor does it appear that such exceptions would apply. The rule defines the excepted claims as follows:
d. The person is being held in custody after the sentence imposed has expired;
e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:
(1) The newly discovered material facts were discovered after the trial.
(2) The defendant exercised due diligence in securing the newly discovered material facts.
(3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.
f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or g. There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or h. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.Ariz.R.Crim.P. 32.1.
Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Where a claim is based on "newly discovered evidence" that has previously been presented to the state courts, the evidence is no longer "newly discovered" and paragraph (e) has no application. Here, Petitioner has long ago asserted the facts underlying his claims. Paragraph (f) has no application where the petitioner filed a timely notice of post-conviction relief. Paragraph (g) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no application to the procedural claims Petitioner asserts in this proceeding.
Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court. Thus, Petitioner's claims that were not fairly presented are all now procedurally defaulted.
3. Procedural Bar on Independent and Adequate State Grounds
Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011).
In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 584-585.
Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The federal courts have routinely held that it is. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).
Timeliness Bar - Similarly, Petitioner fails to proffer anything to suggest that Rule 32.4 is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The Ninth Circuit has held that it is. Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir. 2006) (unpublished decision).
4. Application to Petitioner's Claims a. Ground 1 - Severance
In Ground 1, Petitioner argues the refusal to sever his trial from that of his co-defendants was a violation of the Fifth and Fourteenth Amendments. He asserts the claim was presented to the Arizona Court of Appeals on direct appeal. (Petition, Doc. 1 at 6.)
Although it does not appear to the undersigned that a federal claim on severance was presented to or decided by the Arizona Court of Appeals (and thus Petitioner has now procedurally defaulted on the claim) Respondents make no argument that Ground 1 was not properly exhausted, but instead address it on the merits. (See Answer, Doc. 10 at 11-13, 28-30.) Respondents do not, however, expressly waive exhaustion on this claim. See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”)
Nonetheless, 28 U.S.C. § 2254(b)(2) provides: "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” Because the undersigned finds this claim to be plainly without merit, the procedural default is not raised sua sponte, and the claim is denied hereinafter on the merits.
b. Ground 2 - Insufficient Evidence
In Ground 2, Petitioner argues there was insufficient evidence to convict, pointing to his evidence of an alibi of being at a friend's home, the lack of evidence of him leaving, and the lack of his fingerprints or DNA at the home invasion scene. He asserts this was a violation of 14th Amendment under Jackson v. Virginia, 443 U.S. 307, 319 (1979). He asserts he exhausted his state remedies on this claim in his direct appeal. (Petition, Doc. 1 at 7.)
Respondents argue that Petitioner did not fairly present his claim in Ground 2 of insufficient evidence on direct appeal to the Arizona Court of Appeals as a federal claim and has now procedurally defaulted his state remedies.
Indeed, Petitioner raised the facts of this claim in his direct appeal. (Exh. FF, Open. Brief at 34-35.) However, in arguing this claim Petitioner made no reference to the Fourteenth Amendment, the United States Constitution, Jackson, or any other federal case. Rather, he relied solely upon two strings of citations to state cases:
State v. Ramirez, 142 Ariz. 171, 175, 688 P.2d 1063, 1067 (1984); State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983); State v. Axley, 132 Ariz. 383, 393, 646 P.2d 268, 278 (1982); State v. Franklin, 130 Ariz. 291, 292, 635 P.2d 1213, 1214 (1981); State v. Parker, 113 Ariz. 560, 561, 558 P.2d 905, 906 (1976).(Id. at 34.)
Substantial evidence is more than a mere scintilla. State v. Doss, 192 Ariz. 408, 412, 966 P.2d 1012, 1016 (1998). It is evidence that reasonable persons would accept as adequate and sufficient to support conclusion of a defendant's guilt beyond reasonable doubt. State v. Stevens, 184 Ariz. 411, 412, 909 P.2d 478, 479 (1995); State v. Edwards, 136 Ariz. 177, 186, 665 P.2d 59, 68 (1983); State v. Hunter, 136 Ariz. 45, 48, 664 P.2d 195, 198 (1983); State v. Paoletto, 133 Ariz. 412, 416, 652 P.2d 151, 155 (1982); State v. Mosley, 119 Ariz. 393, 402, 581 P.2d 238, 247 (1978).(Id. at 36.)
It is true a federal claim can be fairly presented by “a citation to a state case analyzing [the] federal constitutional issue." Peterson, 319 F.3d at 1158. But a drive-by-citation of a state case applying federal and state law is not sufficient.
For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).
None of the cases cited by Petitioner in his appellate brief applied federal law. All of the cited cases were based on Arizona's standard for a judgment of acquittal, i.e. under Ariz. R. Crim. Proc. 20, and engaged in no discussion of federal constitutional standards. See State v. Ramirez, 142 Ariz. 171, 175, 688 P.2d 1063, 1067 (1984); State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983); State v. Axley, 132 Ariz. 383, 393, 646 P.2d 268, 278 (1982); State v. Franklin, 130 Ariz. 291, 292, 635 P.2d 1213, 1214 (1981); State v. Parker, 113 Ariz. 560, 561, 558 P.2d 905, 906 (1976); State v. Doss, 192 Ariz. 408, 412, 966 P.2d 1012, 1016 (1998); State v. Stevens, 184 Ariz. 411, 412, 909 P.2d 478, 479 (1995); State v. Edwards, 136 Ariz. 177, 186, 665 P.2d 59, 68 (1983); State v. Hunter, 136 Ariz. 45, 48, 664 P.2d 195, 198 (1983); State v. Paoletto, 133 Ariz. 412, 416, 652 P.2d 151, 155 (1982); and State v. Mosley, 119 Ariz. 393, 402, 581 P.2d 238, 247 (1978).
It is also true that a federal claim may be fairly presented by relying on state law which is identical to the federal law (although mere similarity is not sufficient). Fields v. Waddington, 401 F.3d 1018, 1024 (9th Cir. 2005). But see Baldwin v. Reese, 541 U.S. 27, 33 (2004) (declining on procedural grounds to address whether, where an identity between state and federal standards exists, “a petitioner need not indicate a claim's federal nature, because, by raising a state-law claim, he would necessarily ‘fairly present' the corresponding federal claim”).
Arizona's standard on motion for judgment of acquittal draws on Jackson. For example, in Petitioner's case the appellate court cited to “State v. West, 226 Ariz. 559, 562 ¶ 15 (2011).” (Exh. HH, Mem. Dec. at ¶ 20.) In the following paragraph of that case, the Arizona Supreme Court opined:
On all such motions, “the relevant question is whether, 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.” Mathers, 165 Ariz. at 66, 796 P.2d at 868 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).West, 226 Ariz. 559, 562, 250 P.3d 1188, 1191 (2011). However, the Arizona standard is not identical to the Jackson standard. Rather, the Arizona courts consistently apply a standard that “there is a complete absence of probative facts to support the conviction.” State v. Alvarado, 219 Ariz. 540, 542, 200 P.3d 1037, 1039 (Ct. App. 2008) (quoting State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996).) In Jackson, the Court explicitly rejected the call for a “no evidence” standard that would be satisfied by a “mere modicum” of evidence, and held instead that the standard was “record evidence [that] could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 320. Thus, the Arizona standard under Rule 20 is not identical to the standard in Jackson.
Accordingly, not only did Petitioner not fairly present a Jackson claim to the Arizona Court of Appeals, that court did not decide such a claim.
Jackson flows from the Due Process Clause of the Fourteenth Amendment (rather than the Fifth Amendment), which protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Jackson, 443 U.S. at 315. Arguably, however, Petitioner may have fairly presented a Jackson claim in his PCR petition when he argued his “V-Amendment right was violated” because of the various deficiencies in the evidence, e.g. no DNA, no fingerprints, his alibi witness, etc., (Exh. MM, PCR Pet. at 5), because the Fifth Amendment also includes a due process clause.
The state argued in response to the PCR petition that an “insufficient evidence” claim had been resolved on direct appeal, and was thus precluded. But the state did not identify this as a federal claim of insufficient evidence. (Exh. NN, PCR Resp. at 8.) Because the PCR court simply adopted this State's arguments on waiver and preclusion, there was no finding of preclusion based upon a prior, merits-ruling of a federal Jackson claim.
Thus, (assuming he had fairly presented such a claim in his PCR petition), Petitioner could have properly exhausted his state remedies by seeking review of his Jackson claim in the Arizona Court of Appeals. He did not do so.
Accordingly, Petitioner has never fairly presented his Jackson claim to the Arizona Court of Appeals, and for the reasons discussed above he has now procedurally defaulted his state remedies on that claim.
c. Ground 3 - Ineffective Assistance of Counsel
In Ground 3, Petitioner argues trial counsel was ineffective. He argues PCR counsel was ineffective for failing to raise such claims. He concedes he has never presented these claims to the Arizona Court of Appeals, but attributes cause to PCR counsel's ineffectiveness pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). (Petition, Doc. 1 at 8.)
PCR Counsel - Petitioner has never asserted to the state courts a claim of ineffective assistance of PCR counsel.
However, the claim was not ripe at the time of his direct appeal or PCR petition, and he could only seek review of the decision of the PCR court in his Petition for Review in that proceeding. See Ariz. R. Crim. Proc. 32.16(a)(1) (‘review of the decision”) and (c)(2)(B) (“issues the trial court decided”). While claims of ineffective assistance of PCR counsel can be raised in Arizona in a successive PCR petition, that right is limited to “of-right” petitions (e.g. those of pleading or capital defendants). See State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (Ct. App. 1995). Petitioner was not a pleading defendant. Accordingly, there were no available state remedies on this claim, and thus his available remedies are exhausted.
Trial Counsel - On the other hand, Petitioner could have raised his claims of ineffective assistance of trial counsel in his PCR proceeding. But he did not do so, and he has now procedurally defaulted on those claims.
d. Summary Re Exhaustion
Based upon the foregoing, the undersigned concludes that Petitioner has procedurally defaulted on his claims in Ground 2 and his claims of trial ineffectiveness in Ground 3.
5. Cause and Prejudice
a. Cause and Prejudice Standard
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
“Cause” is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). “Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court ‘has not given the term “cause” precise content.'” Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:
... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials", made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
b. Access to File
In Ground 4 of his Petition, Petitioner complains that PCR counsel had not provided him copies of his file beyond transcripts, and as a result he has been “impeded in the presentation of his federal Writ of Habeas Corpus § 2254 Petition.” (Petition, Doc. 1 at 9.) Petitioner makes no argument, however, that this impeded his ability to present his claims to the state courts.
Moreover, Petitioner was represented by counsel during his direct appeal and in the PCR court. Counsel would not have been representing him in a petition for review to the Arizona Court of Appeals, but Petitioner does not relate his failure to file such a petition to the lack of his file.
Further, the record reflects that PCR counsel forwarded their entire file to Petitioner in April 2018, prior to his filing of his pro per PCR Petition in August 2018. This was not limited to trial transcripts, but included minute entries, appellate decisions, plea agreement, pre-sentence report, etc. (See Exh. KK, Not. of Compliance.) Petitioner never asserted to the state court that the material sent was not received, and he fails to show that there were other documents still in PCR counsel's possession that were necessary for him to file his petition for review with the Arizona Court of Appeals.
Petitioner fails to show cause on this basis to excuse his procedural defaults.
c. Martinez and PCR Ineffectiveness as Cause
Petitioner argues in Ground 3 of his Petition that his procedural default on his claims of trial ineffectiveness should be excused under Martinez v. Ryan because the default resulted from PCR counsel's failure to raise the claims. (Petition, Doc. 1 at 8.)
In Martinez v. Ryan, 566 U.S. 1 (2012), the Court recognized a narrow exception to the Court's ruling that the ineffectiveness of PCR counsel is not a constitutional violation and thus cannot provide cause to excuse a procedural default. Because courts, like Arizona's, increasingly reserve review of claims of ineffective assistance of trial counsel to post-conviction relief proceedings, ineffective assistance of PCR counsel can establish cause to excuse a procedural default of a claim of ineffective assistance of trial counsel. Martinez only applies to the right to the effective assistance of trial counsel. Accordingly, Petitioner's complaint that PCR counsel was ineffective cannot form cause to excuse a failure to properly exhaust state remedies on his claims in Ground 2.
For Petitioner to rely upon Martinez, Petitioner must “demonstrate[e] two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318).
Respondents argue that Martinez does not provide cause because Petitioner's claims of ineffective assistance of trial counsel are not substantial. “[A] claim is ‘insubstantial' if ‘it does not have any merit or ... is wholly without factual support.'” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013). That is not to suggest that the petitioner must present a fully proofed claim of ineffective assistance. “In deciding whether to excuse the state-court procedural default, the district court thus should, in appropriate circumstances, allow the development of evidence relevant to answering the linked Martinez questions of whether there was deficient performance by PCR counsel and whether the underlying trial-counsel IAC claims are substantial.” Id. at 1247. On the other hand, “vague, conclusory, and nonsensical statements are insufficient.” Carter v. Ryan, 2019 WL 4855212, at *8 (D. Ariz. Aug. 22, 2019), report and recommendation adopted, 2019 WL 4849545 (D. Ariz. Oct. 1, 2019).
d. Standard for Ineffectiveness
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000).
An objective standard applies to proving such deficient performance, and requires a petitioner to demonstrate that counsel's actions were “outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense.” United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting Strickland, 466 U.S. at 687-90). The reasonableness of counsel's actions is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689.
Moreover, it is clear that the failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). “The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
e. Ground 3A and 3C - Alibi Witnesses
In Ground 3A, Petitioner argues trial counsel failed to call his alibi witnesses Pierre Simmons, Cordell Bess, and the employees of the hotel where he was visiting. In Ground 3C he argues that trial counsel was deficient for calling instead the witness Donovan Jones as an alibi witness.
Respondents properly argue Petitioner proffers nothing to show the testimony of the uncalled witnesses would have been exculpatory, and thus fails to overcome the presumption of adequate performance. Thus, these claims are conclusory and on this basis alone insubstantial.
Further, Respondents properly argue that Simmons was unavailable at trial. (See Exh. B. Mot. to Sever.) Moreover, Respondents properly argue that contrary to Petitioner's assertions, counsel argued to the trial court that Simmons would actually testify that Petitioner was at the scene of the crime. (See Exh. C., R.T. 7/27/15 (Pretrial Conf.) at 11-12.)
Additionally, Respondents properly argue Petitioner fails to show a likelihood that the result of trial would have changed because of the strong evidence of guilt, including: (a) the statements of multiple victims that Petitioner was at the scene (see Exh. I, R.T. 11/3/15 (Day 4) at 141-45 (Offc. Archuleta); Exh. R, R.T. 11/19/15 (Day 13), at 116, 131 (Det. Enriquez)); (b) corroborating and identifying testimony of the victims (Exh. O, R.T. 11/16/15 (Day 10) (Victim N.V.) at 67; Exh. P, R.T. 11/171/15 (Day 11) (Victim DZ) at 19-20, 34, 51); and (c) the physical evidence from the search of Petitioner's home (see Exh. Q, R.T. 11/18/15 (Day 12), at 50-72 (Det. Mundell)).
Finally, Respondents properly argue that the Petitioner offers nothing to show that that the choice between the testimony of Jones, rather than Simmons, Bess, and the hotel employees, was not a reasonable tactical choice.
Grounds 3A and 3C are not substantial, and failure to raise them was not ineffective assistance by PCR counsel.
f. Ground 3B - Identification Expert
In Ground 3B Petitioner argues that trial counsel should have retained an identification expert to opine on the unreliability of eyewitness identifications. Respondents properly argue that this claim is conclusory and insubstantial because Petitioner fails to offer anything other than speculation that such an expert exists, or that they would have rendered exculpatory information. Respondents further properly argue that Petitioner's premise, that such testimony would have related to the “reliability of single witness identification” ignores that both victim's identified Petitioner as a perpetrator, and that such testimony would not explain away the physical evidence recovered at Petitioner's home.
Ground 3B is not substantial, and failure to raise it was not ineffective assistance by PCR counsel.
g. Ground 3D - Plea Offer
In Ground 3D, Petitioner argues trial counsel did not adequately advise him on the favorable plea offer, because he did not advise Petitioner to accept the offer. Respondents properly argue that Petitioner has conflated the plea offer on Count 10 (to 2.5 years, which Petitioner accepted) with a plea offer on Counts 1 to 9, and that there is no evidence of a plea offer on those counts. (See Exh. AA, Plea Agreement on Count 10.)
Ground 3D is not substantial, and failure to raise it was not ineffective assistance by PCR counsel.
h. Summary re Cause and Prejudice
Based upon the foregoing, the undersigned concludes that Petitioner has failed to establish cause to excuse his procedural defaults on Ground 2 and the trial ineffectiveness claims in Ground 3.
Both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.
6. Actual Innocence
The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added).
A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. This standard is referred to as the “Schlup gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). Moreover, to pass through the Schlup gateway, not just any evidence of innocence will do; the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324.
Here, Petitioner proffers no new, credible evidence of his actual innocence. Just as his speculation about testimony from Simmons, Bess, hotel employees and an identification expert are not sufficient to make his claims of ineffective assistance substantial, they are insufficient to show that no reasonable juror would have found him guilty.
Accordingly, his procedurally defaulted claims must be dismissed with prejudice.
B. STANDARDS FOR RELIEF Standard of Review
While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court, ” 28 U.S.C. § 2254(d) and (e), not every error justifies relief.
Deferential Review of Merits Decisions - Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). See Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013) (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits).
Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error. This statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
Errors of Law - To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).
Errors of Fact - Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).
De Novo Review - Where there is no state-court merits-based decision, Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013), or the standards of § 2254(d) have been met, the habeas court reviews the state judgment de novo.
But even where the habeas court is reviewing a claim de novo, there is a well-established presumption of correctness of state court findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence." This presumption of correctness applies not only to the explicit factual findings by the state court, but to the implicit factual findings as well. See Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir.1990) (implicit factual findings are entitled to a presumption of correctness in appropriate circumstances); see also Taylor v. Horn, 504 F.3d 416, 433 (3d Cir.2007) (“Implicit factual findings are presumed correct under § 2254(e)(1) to the same extent as express factual findings.”).
C. MERITS OF GROUND 1 - SEVERANCE
In Ground 1, Petitioner argues his due process rights were violated when the state court repeatedly denied his motions to sever his trial from that of co-defendants based on their antagonistic defenses, and failed to make an adequate record on its findings and reasoning. He argues his alibi defense was antagonistic to co-defendants' defense of entering the victim's home as bounty hunters. (Petition, Doc. 1 at 6.)
Respondents argue Petitioner fails to show how his claims justify relief under § 2254(d). Respondents argue that the Arizona Court of Appeals properly concluded the defenses were not antagonistic, and that in any event no Supreme Court law requires severance based on antagonistic defenses. (Answer, Doc. 10 at 28-30.)
As noted above in discussing exhaustion of this claim, it is not clear that a federal claim on severance was presented to or decided by the Arizona Court of Appeals. Nor does Petitioner show that he presented such a federal claim to the trial court.
The undersigned assumes arguendo, in Petitioner's favor, that no merits decision was made on the federal claim in Ground 1 by the state courts at any level, the deferential review under § 2254(d) does not apply, and this Court must evaluate the claim de novo. Under this assumption, this Court is not limited to reliance on decisions of the Supreme Court. However, despite this assumption, the presumption of correctness of the state court factual findings, as mandated by 28 U.S.C. § 2254(e), continues to apply.
The U.S. Supreme Court has not found a constitutional violation based on refusal to grant a severance based, whether on antagonistic defenses, or otherwise. In Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir. 2010), the Ninth Circuit declined to find Supreme Court law establishing a constitutional rule on severance for antagonistic defenses under Zafiro v. United States, 506 U.S. 534 (1993) or United States v. Lane, 474 U.S. 438, 446 n. 8 (1986). See also Runningeagle v. Ryan, 686 F.3d 758, 776 (9th Cir. 2012) (quoting Collins). The circuit court concluded Lane offered only dicta on the issue, and that “[b]y its own wording, Zafiro only applies to federal and not state court trials.” Collins, 603 F.3d at 1131-32.
Under the governing law of the Ninth Circuit, a federal habeas remedy is available for improper consolidation only if the simultaneous trial “actually renders [the defendant's] state trial fundamentally unfair and hence, violative of due process.” Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.1991).
Inquiry into the prejudicial effect of a joint trial involves consideration of several factors, including: (1) whether the jury may reasonably be expected to collate and appraise the individual evidence against each defendant; (2) the judge's diligence in instructing the jury on the limited purposes for which certain evidence may be used; (3) whether the nature of the evidence and the legal concepts involved are within the competence of the ordinary juror; and (4) whether Appellants could show, with some particularity, a risk that the joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. The first two factors are the most important in this inquiry.United States v. Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005). Prejudice has often been found where either (1) the joinder permits admission of cross-evidence not otherwise admissible, or (2) the joinder permits the bolstering of a weak case with a stronger one. Davis v. Woodford, 384 F.3d 628, 638 (9thCir. 2004).
Here, Petitioner fails to show the defenses were antagonistic. To be sure, the defenses were different. But that is not sufficient. “Only where the acceptance of one party's defense will preclude the acquittal of the other party does the existence of antagonistic defenses mandate severance.” United States v. Gonzales, 749 F.2d 1329, 1334 (9th Cir. 1984). Here, as recognized by the Arizona Court of Appeals, there was nothing inherently antagonistic between the co-defendants' bounty-hunter defense and Petitioner's alibi defense. Petitioner offers no reason why co-defendants could not have been at the scene as bounty-hunters, while Petitioner was visiting his friend.
Nor was there overlapping evidence between the two defenses that rendered the joint trial prejudicial. The Arizona Court of Appeals made the following findings, which Petitioner does not oppose:
During closing argument, Harden's attorney maintained that Harden was not at N.V.'s residence on March 3, 2013, and suggested the victims had misidentified Harden due to stress and" subtle messages" from the officers who administered the photo lineups. Codefendant Steagall's attorney argued there was no physical evidence to tie his client to the crime scene, and codefendant Childress's attorney argued that Steagall and Childress were bounty hunters simply doing their "job." Counsel for Steagall and Childress acknowledged that their clients' defenses were independent, but neither attorney attempted to inculpate Harden or even place him at the scene.(Exh. HH, Mem. Dec. at ¶ 16.) Based on those facts, the undersigned agrees with the state court's conclusion that “the codefendants' defenses were not overtly antagonistic toward Harden and did not defeat his claim that he never entered N.V.'s home on March 3, 2013.” (Id.)
Petitioner argued to the Arizona Court of Appeals that the conflict lay in the evidence used to counter the bounty hunter defense, i.e. “‘negative information' about Steagall's ‘bounty hunting business' and evidence that police officers found stolen property at Steagall's residence.” (Exh. HH, Mem. Dec. at ¶ 17.) The state court found:
The State presented evidence that police officers found some of the victims' stolen property at Steagall's apartment to prove the codefendants, acting as accomplices, committed the charged offenses. Given the State's theory of accomplice liability, there was no danger that this evidence may have an unintended "rub-off effect" on Harden because the State affirmatively, and properly, used the evidence to prove his guilt. Moreover, to the extent evidence that Steagall attempted to work as a bounty hunter may have potentially cast Harden in a negative light, the record reflects that the trial court properly instructed jurors to separately weigh and consider the evidence against each defendant, which" effectively cured any potential prejudice due to rub-off."(Id. at ¶ 19.) Again, Petitioner does not counter the state court's factual findings. Petitioner proffers nothing to explain why the presence of stolen property at the co-defendants' home would not have, in any event, been admissible at any severed trial of Petitioner alone.
As for the negative connotations about being bounty hunters, Petitioner fails to explain the negative light he perceives emanated from being cast as in cahoots with bounty hunters, nor does he identify any specific “negative information” regarding the bounty hunter business. He proffered no explanation to the Arizona Court of Appeals. (See Exh. FF, Open. Brief at 32, and generally.) Bounty hunting, like any trade, can suffer from abuses which attract attention. It is, however, a legitimate occupation. See e.g. Mitchell v. First Call Bail & Sur., Inc., 412 F.Supp.3d 1208, 1220 (D. Mont. 2019) (“Because bounty hunting goes part and parcel with the commercial bail bond industry it would seem to be an important activity to the community.”). See also Ariz. Rev. Stat. § 13-3885(A) and (G)(2) (authorizing employment of bounty hunter (called a “bail recovery agent”) to arrest a defendant on behalf of his bail bond holder).
To be sure, the trade of being a bounty hunter has at times suffered both derision and adulation in the popular media. See e.g. Jeffrey Fleischman, Is it curtains for Hollywood's bail bondsmen and bounty hunters?, Los Angeles Times (Nov. 16, 2018), available at https://www.latimes.com/entertainment/movies/la-ca-mn-bail-bondsmen-film-20181116-story.html, last accessed 6/9/21 (detailing movies featuring bounty hunters).
Nor does Petitioner explain the significance of the absence of DNA or fingerprints to the severance decision. At most, it might indicate that the physical evidence tying co-defendants to the crime was all the more important to the prosecution's case, and thus had to be persuasive in light of the convictions. But effective inculpatory evidence is not necessarily unfairly prejudicial. Petitioner fails to explain how this evidence was unfairly prejudicial.
Finally, Petitioner fails to explain why the jury instruction that jurors were “to separately weigh and consider the evidence against each defendant, ” (Exh. HH, Mem. Dec. at ¶ 19), was not sufficient to counter any potential for unfair prejudice.
Ground 1 is without merit and must be denied.
D. MERITS OF GROUND 2 - INSUFFICIENT EVIDENCE
In addition to asserting procedural default (Answer, Doc. 10 at 11-12), Respondents argue, in the alternative, that Petitioner's claim of insufficient evidence in Ground 2 is without merits, (id. at 31-32).
Because the undersigned concludes that Ground 2 is plainly procedurally defaulted, the merits of the claim are not reached.
E. MERITS OF GROUND 3 - PCR INEFFECTIVENESS
In Ground 3, Petitioner argues that PCR counsel provided ineffective assistance of counsel. The state prisoner habeas statute provides:
The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.28 U.S.C. § 2254(i).
There are situations where a post-conviction relief proceeding is functionally a direct appeal, and consequently counsel in such proceeding is treated as constitutionally required appellate counsel, e.g. of-right PCR proceedings by pleading defendants in Arizona. See e.g. Pacheco v. Ryan, CV-15-2264-PHX-DGC-JFM, 2016 WL 7423410, at *29 (D. Ariz. Sept. 23, 2016), report and recommendation adopted, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016). Here, however, Petitioner did not plead guilty and had a traditional direct appeal.
This claim is without merit.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION IT IS THEREFORE RECOMMENDED:
(A) Petitioner's claim in Ground 2 (insufficient evidence) and his claim of ineffective assistance of trial counsel in Ground 3 of Petitioner's Petition for Writ of Habeas Corpus (Doc 1) be DISMISSED WITH PREJUDICE
(B) The balance of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1), including Petitioner's claim in Ground 1 (severance) and his claims of ineffective assistance of PCR counsel in Ground 3, be DENIED.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”