Opinion
CV-21-08168-PCT-DWL (ESW)
08-08-2022
Curtis Benjamin Hollingsworth, Petitioner, v. David Shinn, et al., Respondents.
THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Curtis Benjamin Hollingsworth's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Respondents have filed their Answer (Doc. 7), and Petitioner has filed a Reply (Doc. 15). For the reasons explained herein, it is recommended that the Court (i) dismiss Ground Two as procedurally defaulted and (ii) deny Ground One, Three, and Four on the merits.
I. BACKGROUND
The Petition challenges Petitioner's Arizona state court convictions for kidnapping and assault. As summarized by the Arizona Court of Appeals, the facts underlying Petitioner's convictions are as follows:
The challenged judgment of conviction was entered in the Superior Court of Arizona in and for Yavapai County on October 23, 2012. (Doc. 1 at 1).
¶ 2 While driving his Buick in Cordes Lakes in December 2011, Hollingsworth followed the victim, a seventeen-year-old girl taking an evening walk. When the victim realized she was being followed, she ran and thought she was safe when she saw the Buick parked next to a store. But as she walked past a church parking lot, the Buick came towards her and, before she could run, Hollingsworth opened the driver's side door, grabbed her right wrist and told her to “[g]et in my car.” Although he grabbed her hard enough to leave marks on her wrist, she broke free and ran into the front yard of a nearby house. Hollingsworth drove slowly by the front of the house, but sped away after the victim yelled at him.
¶ 3 The victim ran home, told her mother about the incident, and her mother called 9-1-1. The victim gave the deputy sheriff a detailed description of the Buick, including its license plate number. She also told the deputy that she saw the driver, and described the shirt he was wearing as either “yellow or cream-colored” with “dark stripes going down vertically,” and told the deputy that the driver had a beer belly.
¶ 4 The sheriff's office quickly traced the license plate to Hollingsworth, and a deputy went to Hollingsworth's house. The deputy saw a Buick that matched the description and the license plate number given by the victim parked in front of Hollingsworth's house. He touched the car, and the front grille area felt warm, which indicated that the car had been driven recently. Hollingsworth answered the front door wearing a shirt that matched the description of the shirt given by the victim. After getting a warrant, the deputies searched Hollingsworth's car, and found a box of condoms in the glove compartment.(Doc. 7-17 at 96). A jury trial began on June 27, 2012. (Doc. 7-1 at 29). The trial court subsequently declared a mistrial based on tainted and unduly suggestive pretrial identification made by the victim. (Doc. 7-7 at 27-32). Petitioner moved to dismiss the case with prejudice, which the trial court denied. (Doc. 7-9 at 60).
Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the Arizona Court of Appeals' summary of facts is presumed correct. As Petitioner has not presented clear and convincing evidence to the contrary, this Report and Recommendation adopts the factual summary set forth by the Arizona Court of Appeals. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court's decision for our summary of the facts of the crime.”); Cudjo v. Ayers, 698 F.3d 752, 762 (9th Cir. 2012) (“[T]he statement of facts from the last reasoned state court decision is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.”).
A second trial commenced on September 12, 2012. (Doc. 7-10 at 3). The kidnapping charge was tried before a jury. (Doc. 7-15 at 29). The misdemeanor assault charge was tried before the trial court. (Id.). On September 19, 2012, the jury found Petitioner guilty of kidnapping. (Id. at 33). The trial court found Petitioner guilty on the assault charge. (Id. at 30-31). After finding that Petitioner had two prior felony convictions, the trial court sentenced Petitioner to a total of twenty-two years in prison. (Doc. 7-16 at 10, 22).
Petitioner appealed his conviction and sentencing for kidnapping. (Doc. 7-16 at 27-79). On March 3, 2016, the Arizona Court of Appeals denied relief. (Doc. 7-17 at 105). The Arizona Supreme Court denied Petitioner's Petition for Review. (Id. at 133).
On January 23, 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 135-37). Petitioner's PCR counsel filed a PCR Petition that presented an ineffective assistance of counsel claim asserting that his trial counsel failed to object to improper vouching by the prosecutor. (Id. at 139-51). After briefing, the trial court denied relief. (Id. at 178-79). The Arizona Court of Appeals affirmed the trial court's ruling on February 23, 2021. (Id. At 190).
In July 2021, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). The Court screened the Petition and required Respondents to file an answer. (Doc. 4). Respondents filed their Answer (Doc. 7) on September 9, 2021. Petitioner filed a Reply (Doc. 15) on April 27, 2022.
On April 6, 2022, the Court issued an Order withdrawing the reference to the Magistrate Judge as to Petitioner's Motion (Doc. 11) requesting copies of any case law or other legal authority used in Respondents' Answer or Court orders. (Doc. 13). The Court denied Petitioner's Motion (Doc. 11). Petitioner's request for reconsideration (Doc. 14) of that Order is currently pending before the Court. Motions for reconsideration should be granted only in rare circumstances. See Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multonomah County, 5 F.3d at 1263; see also LRCiv 7.2(g)(1) (“The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.”). Such motions should not be used for the purpose of asking a court “to rethink what the court had already thought through - rightly or wrongly.” Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995) (internalquotation marks and citation omitted). Petitioner has not presented newly discovered evidence, cited any intervening change in controlling law, and has not shown that the Court committed clear error or issued a manifestly unjust decision. Accordingly, the undersigned recommends that the Court deny Petitioner's request for reconsideration (Doc. 14).
In Section II of this Report and Recommendation, the undersigned finds that Ground Two is procedurally defaulted without excuse. Section III concludes that Grounds One, Three, and Four are meritless.
II. GROUND TWO IS PROCEDURALLY DEFAULTED
A. Legal Standards Regarding Procedurally Defaulted Habeas Claims
1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. ”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “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) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).
B. Petitioner Failed to Fairly Present Ground Two to the State Courts
In Ground Two of the Petition, Petitioner asserts “Double Jeopardy in violation of the Fifth, Sixth and Fourteenth Amendments].” (Doc. 1 at 7). Petitioner explains that his “first trial was declared a mistrial on the basis of prosecutorial misconduct. After the mistrial was declared, [Petitioner] filed a Motion to Dismiss case with prejudice for Double Jeopardy, prosecutorial misconduct, and due process violations.” (Id.).
The Fifth Amendment Double Jeopardy Clause protects a criminal defendant from multiple prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671 (1982). Where a defendant moves for a mistrial, double jeopardy typically does not bar a retrial. Id. at 673. However, where the government's conduct gave rise to the motion and was “intended to ‘goad' the defendant into moving for a mistrial,” a defendant may raise the double jeopardy bar to prevent a retrial. Id. at 676.
In his direct appeal, Petitioner presented a double jeopardy claim. (Doc. 7-16 at 51-65). However, in presenting the claim, Petitioner did not reference federal law, and instead based his argument on Pool v. Superior Court, 677 P.2d 261 (Ariz. 1984).
In Pool, the Arizona Supreme Court “broadened the Oregon v. Kennedy exception.” Miller v. Superior Ct., 938 P.2d 1128, 1131 (Ariz. App. 1997); State v. Jorgenson, 10 P.3d 1177, 1178 (2000) (explaining that “Pool rejects the rule adopted by the plurality opinion in Oregon v. Kennedy” as to the circumstances required for jeopardy to attach based upon a defendant's motion for mistrial stemming from prosecutorial misconduct). Pool holds that
jeopardy attaches under art. 2, § 10 of the Arizona Constitution when a mistrial is granted on motion of defendant or declared by the court under the following conditions:
1. Mistrial is granted because of improper conduct or actions by the prosecutor; and
2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.Pool, 677 P.2d at 271-72 (footnote omitted).
Some Arizona courts have observed that “[t]he double jeopardy protections extended by the Arizona Constitution are coextensive with those provided by its federal counterpart.” State v. Sprang, 251 P.3d 389, 394 (Ariz. App. 2011) (quoting Lemke v. Rayes, 141 P.3d 407, 411 n. 2 (Ariz. App. 2006)). However, courts “cannot assume federal claims were impliedly brought by virtue of the fact that they may be ‘essentially the same' as state law claims.” Casey v. Moore, 386 F.3d 896, 914 (9th Cir. 2004).
In his Reply, Petitioner asserts that in his direct appeal, “[a]lthough he relied upon an Arizona case (Pool v. Superior Court) he also relied upon several U.S. Supreme Court rulings such as Oregon v. Kennedy, Brady v. Maryland and United States v. Weatherspoon.” (Doc. 15 at 2). In support of this assertion, Petitioner provides citations to his Petition for Review filed in the Arizona Supreme Court. Petitioner recounts that on Page 9 of his Petition for Review, he states: “In Pool v. Superior Court in and for Pima County[] this Court broke from the United States Supreme Court's double jeopardy standard in Oregon v. Kennedy . . . .” (Doc. 15 at 2; Doc. 7-17 at 120).
Petitioner further recounts that Page 16 of his Petition for Review contains an excerpt from Pool that states that the trial judge's finding at issue in Pool “cannot be sustained even under the plurality view expressed [in] Oregon v. Kennedy . . . .” (Doc. 15 at 2; Doc. 7-17 at 127). In addition, Petitioner notes that Page 11 of his Petition for Review references the U.S. Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963) when it is stated: “This case is a specific species of misconduct cases-the clandestine misconduct case.[] In cases where prosecutors present false evidence, threaten defense witnesses, or commit Brady violations there is typically one act which is the gravamen of the misconduct.” (Doc. 15 at 2; Doc. 7-17 at 122). Finally, Petitioner notes that the Petition for Review references the Ninth Circuit case United States v. Weatherspoon to support the argument that trial courts should consider the prosecutor's record of misconduct when evaluating the prosecutor's credibility. (Doc. 15 at 3; Doc. 7-17 at 122-23).
The above references to federal case law in Petitioner's Petition for Review do not constitute a fair presentation of Ground Two to the Arizona courts. While a petitioner is not required to recite “book and verse on the federal constitution,” Picard, 404 U.S. at 277-78 (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, 459 U.S. at 6. “Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005); see also Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) (“[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.”).
Further, it is noted that Petitioner's Opening Brief filed in the Arizona Court of Appeals does not cite federal authority in support of the double jeopardy claim. (Doc. 716 at 51-64). Ninth Circuit case law provides that a petitioner cannot exhaust a habeas claim by circumventing the applicable state court of appeals and going directly to the state supreme court. In Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004), the Ninth Circuit held that a ground for habeas relief presented by a petitioner convicted by the State of Washington was unexhausted because the petitioner did not fairly present the claim to the Washington Court of Appeals. The Court rejected the petitioner's argument that the exhaustion requirement was satisfied because he raised it in his petition for review in the Washington Supreme Court. After examining case law from other circuits and the U.S. Supreme Court, the Ninth Circuit concluded that because the petitioner “raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.” Id. at 918.
Therefore, under Casey, even if Petitioner did fairly present Ground Two as a federal claim in his Petition for Review filed in the Arizona Supreme Court, Petitioner failed to exhaust the claim as he did not fairly present it as a federal claim to the Arizona Court of Appeals. The undersigned finds that Respondents correctly assert (Doc. 7 at 79) that Ground Two is unexhausted. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”); Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (holding that petitioner failed to “fairly present” federal claim to state courts where he failed to identify the federal legal basis for his claim); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds).
If Petitioner returned to state court and presented Ground Two in a PCR Petition, the PCR Petition would be untimely and successive under adequate and independent state procedural rules. See Ariz. R. Crim. P. 32.2(a) and 32.4(b)(3). A state post-conviction action is futile where it is time-barred. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997). The undersigned finds that Ground Two is procedurally defaulted. See Beaty, 303 F.3d at 987 (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 requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
C. Petitioner's Procedural Default is Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
Petitioner's status as a pro se litigant does not exempt Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause). The undersigned finds that Petitioner has failed to establish that his procedural default is “due to an external objective factor that cannot fairly be attributed to him.” Smith, 510 F.3d at 1146 (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural default. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural default.
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327. To the extent that Petitioner may assert that he is innocent, Petitioner does not proffer any new reliable evidence to support actual innocence. Schlup, 513 U.S. at 324 (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.”). The undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse his procedural default. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324). Consequently, the undersigned recommends that the Court dismiss Ground Two with prejudice.
III. MERITS REVIEW OF GROUNDS ONE, THREE, AND FOUR
A. Reviewing Habeas Claims on the Merits
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. [R]esulted 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. [R]esulted 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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to the first entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(1) above, “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to the second entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(2) above, factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). A state court's determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of the state court's decision. Richter, 562 U.S. at 101; Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
B. Ground One: Alleged Prosecutorial Misconduct
Ground One of the Petition alleges prosecutorial misconduct in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights. (Doc. 1 at 6). In support of Ground One, Petitioner asserts that the prosecutor made improper comments during the prosecutor's closing argument. Petitioner asserts:
At the second trial in the State's closing argument, the prosecutor repeatedly expressed his apparent personal support for the alleged victim's testimony and his distaste for the defendant. Over and over again the prosecutor placed the prestige of the government behind the State witness and against the defendant. In closing argument the prosecutor implied that [Petitioner] was a liar and he was not going to tell the truth. However, [Petitioner] did not testify at trial thereby, the prosecutor undermined [Petitioner's] constitutional right to remain silent.(Id.).
In the Supporting Facts section of Ground One, Petitioner also recounts that Petitioner's first trial was declared a mistrial on the basis of prosecutorial misconduct. (Doc. 1 at 6). To the extent Ground One presents a separate prosecutorial misconduct based on the prosecutor's conduct in Petitioner's first trial, Petitioner did not present the claim on direct appeal. Therefore, Respondents correctly assert that the claim is unexhausted and procedurally defaulted. (Doc. 7 at 12 n. 1). The Supporting Facts section of Ground One also asserts “vindictive prosecution after the first trial the prosecutor put in a notice of aggravators however, he never presented the aggravators to the jury, nevertheless the court found the aggravators to be true and sentenced [Petitioner] ¶ 6.25 years above the presumptive.” (Doc. 1 at 6).
Respondents do not assert any affirmative defenses with respect to Ground One. (Doc. 7 at 11-12). Petitioner's Opening Brief filed in the Arizona Court of Appeals on direct appeal contains eight prosecutorial misconduct claims, all of which were denied. (Doc. 7-16 at 65-74; Doc. 7-17 at 102-05). It is not clear from Petitioner's presentation of Ground One whether he is seeking habeas review on all of those claims. If Ground One presents prosecutorial misconduct claims other than those presented on direct appeal, the claims are unexhausted and procedurally defaulted. “Even the same claim, if raised on different grounds, is not exhausted for the purpose of federal habeas review.” Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012); see also Blaylock v. Rewerts, No. 2:18-CV-12656, 2019 WL 2247732, at *4 (E.D. Mich. May 24, 2019) (“Because Petitioner did not present the identical factual basis of his claim that the prosecutor committed misconduct in her closing argument as part of his prosecutorial misconduct claim on his direct appeal, he did not fairly present his claim that the prosecutor committed misconduct in her closing argument on his appeal of right.”). The undersigned finds that the prosecutorial misconduct claims raised on direct appeal were fairly presented as federal claims to the Arizona Court of Appeals. To the extent Ground One may be construed as presenting those same prosecutorial misconduct claims in this proceeding, the claims are without merit for the reasons discussed below.
In presenting the claims to the Arizona Court of Appeals, Petitioner explicitly relied on the Due Process Clause of the United States Constitution. (Doc. 7-16 at 65).
1. Legal Standards
The clearly established federal law applicable to a claim of prosecutorial misconduct is “the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Thus, to prevail on a prosecutorial misconduct claim, a petitioner must show that not only were the prosecutor's actions improper, but that the actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
2. Analysis
i. Alleged Improper Comment on Right to Remain Silent
Petitioner did not testify at trial. On appeal, Petitioner asserted that the prosecutor improperly commented on Petitioner's right to remain silent during the prosecutor's opening statement. The Arizona Court of Appeals' decision provides the following summary of the prosecutor's opening statement:
¶ 44 During the opening statement the prosecutor, previewing what the jurors would hear about Hollingsworth's interview with the sheriff deputy, said:
[Hollingsworth] indicated that the vehicle, the ‘94 Buick, was his vehicle; that's the vehicle he had been driving in Cordes Lakes. And importantly, when asked when he simply drove by this girl who was walking in the road and she said, “Hey, get out of here,” it was the defendant's recollection that his windows were rolled up and he [said h]e could hear her through this rolled-up glass. That's the only contact the defendant indicated, or would admit to, to the deputies.
(Emphasis added.)(Doc. 7-17 at 103) (alteration in original). Petitioner argued on appeal that the prosecutor improperly commented on Petitioner's right to remain silent when the prosecutor told the jury: “That's the only contact [with the victim] the defendant indicated, or would admit to, to the deputies.” (Doc. 7-16 at 66). Petitioner asserted in his Opening Brief that the only way Petitioner “could rebut this statement was to testify. It tells the jury that there is other information that [Petitioner] could have given to law enforcement, but did not. It asks the jury to draw a negative inference from silence.” (Id.). In rejecting the claim, the Arizona Court of Appeals stated:
¶ 43 Hollingsworth first asserts that the prosecutor's misconduct during his opening statement warrants reversal because the State commented on his right to remain silent. We disagree.
....
¶ 45 The challenged statement-“[t]hat's the only contact the defendant indicated, or would admit to, to the deputies”-was the only reference in the State's opening statement about what the State hoped or intended to present to the jury. In part, it was factual, and the State went on to prove that Hollingsworth voluntarily made the pretrial statement that he was driving, saw the girl walking in the road, and told her to get out of here. Although there was no basis for the part of the statement that “or [he] would admit to,” it was not about Hollingsworth's future decision about testifying at trial, nor about his invocation of his constitutional rights, nor does it imply that the jury could find Hollingsworth guilty because he would not admit to further facts to the deputies. Even though part of the statement was an inappropriate comment on the fact that Hollingsworth did not confess, it was tempered by the fact that the jury was instructed just before opening statements that “[statements or arguments made by the lawyers in th[is] case are not evidence.” The same instruction was included in the final instructions given to the jury, and we presume, in the absence of evidence to the contrary, that juries follow their instructions. See State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996).
¶ 46 Moreover, Hollingsworth cites to cases where a prosecutor made the statement during closing argument, which reflected that the defendant did not testify; a clear violation of law. See A.R.S. § 13-117(B); State v. Shing, 109 Ariz. 361, 364, 509 P.2d 698, 701 (1973). That standard does not apply here because the statement was made in the opening statement and subject to future proof, and we will not assume that the jury interpreted the prosecutor's statement in a manner most damaging to the defense. See Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999) (recognizing that a reviewing “‘court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.'”) (quoting Donnelly, 416 U.S. at 647). Additionally, the court in both its preliminary instructions and final instructions not only instructed the jury that the State was required to prove each element of each offense beyond a reasonable doubt, but also told the jury that a defendant has a constitutional right not to testify at trial and the exercise of that right cannot be considered by the jury in determining whether a defendant is guilty or not guilty. As a result, we do not find that the prosecutor's statement during the opening statement is prosecutorial misconduct, nor do we find fundamental or any resulting prejudice. See State v. Anderson, 210 Ariz. 327, 341-42, ¶¶ 50-52, 111 P.3d 369, 383-84 (2005) (finding no error in prosecutor's statement because the court had admonished the jury that the lawyers' statements were not evidence).(Doc. 7-17 at 103).
In Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme Court held that: “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids [ ] comment by the prosecution on the accused's silence. . . .” In Doyle v. Ohio, 426 U.S. 610, 620 (1976), the Supreme Court held that a prosecutor's “use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.”
Although the Arizona Court of Appeals' decision does not discuss Griffin or Doyle when rejecting Petitioner's first prosecutorial misconduct claim, AEDPA deference “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2003) (emphasis in original).
In their Answer, Respondents correctly observe that the prosecutor did not directly comment on Petitioner's right to remain silent when the prosecutor contrasted the victim's sworn testimony to Petitioner's statements to law enforcement. (Doc. 7 at 19). Further, the trial court instructed the jury that it must not let Petitioner's decision on whether or not to testify affect the jury's deliberations. (Doc. 7-14 at 12-13). The trial court also instructed the jury that what the attorneys state during the opening statements and closing arguments is not evidence. (Id. at 13). “A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000). Petitioner has not rebutted that presumption.
The undersigned finds that the Arizona Court of Appeals reasonably rejected Petitioner's first prosecutorial misconduct claim presented on appeal. See Rolan v. Coleman, 680 F.3d 311, 326 (3d Cir. 2012) (concluding that “[n]either the Fifth Amendment nor Doyle shield a defendant from a prosecutor's comments about statements [a defendant] made to the police”); Cook v. Schriro, 538 F.3d 1000, 1020 (9th Cir. 2008) (holding there was no Griffin error where the challenged comment made by prosecutor was “not a direct comment on [the defendant's] failure to testify”); Edwards v. Roper, 688 F.3d 449, 460 (8th Cir. 2012) (holding that where there “was not a direct comment on [the defendant's] failure to testify,” the petitioner's claim failed under AEDPA for the “reason [that] the Supreme Court has never clearly established that a prosecutor may not comment on the evidence in a way that indirectly refers to the defendant's silence”).
ii. Inflaming the Jury
During trial, the prosecutor called the victim's mother as a witness. The prosecutor asked the victim's mother on direct examination: “How has this incident affected [the victim] since it occurred?” (Doc. 7-11 at 116). The trial court overruled the defense's objection, and the mother answered: “She's more cautious; she doesn't go walking by herself anymore.” (Id.). In his direct appeal, Petitioner asserted that it was improper for the prosecutor to elicit this testimony from the victim's mother. (Doc. 7-16 at 68). The Arizona Court of Appeals found no misconduct, observing that:
After cross-examination of the victim, which implied the victim was fabricating her testimony, the victim's mother testified that the victim is more cautious and does not go
walking by herself anymore. The testimony was proper because it substantiated the victim's testimony and was designed to undermine the inference that she was fabricating her testimony. See State v. Thomas, 130 Ariz. 432, 434, 636 P.2d 1214, 1216 (1981) (observing that “any evidence which substantiates the credibility of a prosecuting witness on the question of guilt is relevant and material”) (citation omitted). Accordingly, we find no misconduct by the prosecutor's questions to the victim or her mother, which was a response to undermine the inference that the victim fabricated her testimony.(Doc. 7-17 at 104).
To the extent Ground One of the Petition raises the above claim, Petitioner has not satisfied his burden under AEDPA by showing that the Arizona Court of Appeals' decision was premised on either an unreasonable application of clearly established federal law or an unreasonable determination of the facts. The undersigned finds that the Arizona Court of Appeals' rejection of the claim was reasonable.
iii. Backdoor Hearsay
In his third prosecutorial misconduct claim presented on appeal, Petitioner recounted that during trial, the prosecutor asked four separate officers to describe the nature of the dispatch call they received. (Doc. 7-16 at 69). Petitioner contended that the “evidence that came from this was that the incident was a kidnapping where a man tried to force a girl, who was out for a walk in that are[a], into a vehicle matching the description of [Petitioner's] vehicle. This was a clear attempt at improperly back-dooring hearsay.” (Id.). In addressing this claim, the Arizona Court of Appeals stated:
¶ 48 Hollingsworth also maintains that the prosecutor “backdoored” hearsay testimony by asking each responding deputy what was the nature of the call. The record shows that the prosecutor was eliciting the testimony to set the foundation for the deputies' testimony, and the testimony was not hearsay because it was not admitted to prove the truth of the matter asserted. See State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007) (noting “testimony that is not admitted to prove its truth is not hearsay”). Thus, the prosecutor's questions did not amount to misconduct.(Doc. 7-17 at 104). To the extent Ground One may be construed as presenting the above claim, the undersigned does not find that the Arizona Court of Appeals' rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts.
iv. Improper Bolstering
In the fourth prosecutorial misconduct claim presented to the Arizona Court of Appeals, Petitioner asserted that the prosecutor improperly asked the victim (i) “whether she was mad at her mother, was seeking attention, or had any reason to lie”; (ii) “to opine whether certain facts brought out by the defense meant she was lying”; and (iii) “why she would continue to lie if she had lied to begin with.” (Doc. 7-16 at 69-70) (emphasis in original). Petitioner asserted that “[t]his was improper bolstering as well as improper opinion evidence.” (Id. at 70). That claim was also rejected by the Arizona Court of Appeals, which stated:
¶ 49 Next, Hollingsworth asserts that the prosecutor engaged in bolstering by asking the victim if she was “mad at her mother, was seeking attention, or had any reason to lie.” The question and resulting testimony was not about bolstering, but concerned the victim's lack of a motive to testify falsely. The question, as a result, is not improper bolstering but an attempt to mitigate the anticipated cross-examination, which would explore the victim's motivation to falsify the occurrence. See State v. Vazquez, 830 A.2d 261, 271 n. 10 (Conn. App. 2003) (stating that because a witness's motivation to lie may be explored on cross-examination, it may also be discussed during direct examination).
¶ 50 Hollingsworth also asserts that the prosecutor had the victim characterize the evidence by asking her on redirect examination if certain facts brought out during cross-examination “meant she was lying,” and if she had been lying, why would she “continue to lie.” The record shows that the prosecutor's questions during redirect were a response to Hollingsworth's impeachment during cross-examination. See, e.g., Jones v. State, 733 S.E.2d 400, 405 (Ga.App. 2012) (concluding that prosecutor could ask the victim “if she was telling the truth” on redirect after “defense counsel attempted to impeach the victim's credibility”). As a result, the
question was not impermissible, and we find no misconduct.(Doc. 7-17 at 104).
The undersigned does not find that the Arizona Court of Appeals' conclusion above was contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts.
v. Misleading the Jury about the Lack of a Lineup
Petitioner argued on appeal that the prosecutor had a testifying detective
tell the second jury that the reason law enforcement did not conduct a photo lineup was because of the strength of the identification evidence-[Petitioner's] admission to being in the area and seeing the victim, the so-called detailed description of the vehicle, the license plate, the so-called detailed description of the shirt, and the so-called detailed description of the suspect. This created the clear impression that a lineup was not necessary. Then he added to this that, if anything, the only paltry weakness in the identification was that the victim did not see the suspect's face “clear enough.” The truth of the matter was that she had not seen the suspect's face at all. Then, if that was not bad enough, he added that the “not clear enough view” of the face was only going to prevent her from identifying the suspect in a photo, as opposed to at all. This was a misleading presentation of evidence on a crucial issue, on which there had already been substantial pretrial litigation and pretrial rulings, and all of which surrounded his own prior misconduct. How was the defense to respond to this tactic? Could the defense have pointed out the [the prosecutor's] prior manufacturing of an identification was proof that the identification evidence was weak, not strong? This created a false impression on the jury, that [the prosecutor] knew was misleading, with no reasonable way to correct it.(Doc. 7-16 at 71-72) (emphasis in original). The Arizona Court of Appeals denied relief on the above claim, explaining:
¶ 51 Finally, Hollingsworth asserts that the prosecutor misled the jurors about the lack of a photo line-up. Hollingsworth complains that the prosecutor asked the detective why a lineup was not conducted, and the detective said, “[The victim] did say she did not see his face clear enough that she would be able to identify him in any photo.” The question and
answer were designed to explain why the police did not conduct a photographic line-up to have the victim identify her assailant. As a result, the prosecutor did not mislead the jury about the lack of a photo line-up. Consequently, we do not find any fundamental error or any resulting prejudice.(Doc. 7-17 at 104). To the extent Ground One of the Petition presents the above claim, the undersigned finds that the Arizona Court of Appeals reasonably rejected the claim.
vi. Improper Couching of the Defense Closing Argument
In the sixth prosecutorial misconduct claim presented on direct appeal, Petitioner asserted that the prosecutor
specifically told the jury in closing that “you can't” argue both that it did not happen at all and that it was not the [Petitioner] if it did. . . .A defendant has a due process right to a complete defense. The defense's argument was not logically inconsistent. If [Petitioner] was not there, he would have no way of knowing whether a real grabbing had occurred or not. Does that mean that a defendant in his position may not look at inconsistencies in the victim's story and question whether it happened at all? Of course not. . . . [The prosecutor's] argument basically says a defendant may not have two defenses and if he raised one, he must forego the other. He went farther and told the jury that the attempt to raise two defenses invalidated both. This had the effect of invalidating [Petitioner's] entire defense.(Doc. 7-16 at 72-73). The Arizona Court of Appeals found no error:
¶ 56 Next, Hollingsworth argues that the prosecutor improperly commented on the defense's closing argument. The record demonstrates that the prosecutor commented on the defense's closing, but the prosecutor was criticizing Hollingsworth's theory that the offense did not happen or, if it did, he did not commit the offense. The prosecutor, as a result, did not improperly comment on Hollingsworth's closing argument. See United States v. Sayetsitty, 107 L.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense theories and tactics is a proper subject of closing argument.”); see also State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279 (1990) (concluding that prosecutor did not engage in misconduct when he characterized the defendant's defense as a “smoke screen” and called the defense counsel's argument “outrageous”).(Doc. 7-17 at 105).
In fashioning closing arguments, prosecutors are allowed reasonably wide latitude. See United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002) (“During closing argument, . . . [p]rosecutors have considerable leeway to strike ‘hard blows' based on the evidence and all reasonable inferences from the evidence.”) (citation and internal quotation marks omitted). Although prosecutors may “strike hard blows” in closing argument, they may not “strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212 (1960). A prosecutor's comments cannot form the basis for habeas relief unless the petitioner establishes that they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974)).
The undersigned does not find that the prosecutor's comments concerning Petitioner's defense theory infected the trial with such “unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181. Further, to reiterate, the trial court instructed the jury that the attorneys' opening statements and closing arguments were not evidence. (Doc. 7-14 at 13). Petitioner has not shown that the Arizona Court of Appeals' ruling above was contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts.
vii. Vouching
On appeal, Petitioner argued that the prosecutor engaged in improper vouching when stating in the prosecutor's closing argument that
“I believe the evidence shows that this is a kidnapping . . . .” This was the final sentence [the prosecutor] spoke to the jury. On direct examination of the victim, [the prosecutor] asked, “Did you give that clear, detailed description to law enforcement?” regarding the description of the vehicle. . . . The words “clear, detailed” were superfluous and constituted vouching on [the prosecutor's] part about central evidence.(Doc. 7-16 at 73) (emphasis in original). In addressing the claim, the Arizona Court of Appeals correctly explained that “[v]ouching occurs when a prosecutor places the prestige of the government behind a witness or when the prosecutor suggests that information not presented to the jury supports a witness's testimony.” (Doc. 7-17 at 105) (citing State v. Rosas-Hernandez, 42 P.3d 1177, 1184 (Ariz. App. 2002); see United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). The Arizona Court of Appeals found that the claim is meritless:
¶ 57 Hollingsworth also asserts that the prosecutor engaged in vouching when he said, “I believe the evidence shows that this [was] a kidnapping.” . . . . Here, the prosecutor was summing up his argument and was asking the jury to find Hollingsworth guilty. When read in context, the prosecutor's statement is not vouching as it has been defined in Arizona. See id.; State v. Lee, 185 Ariz. 549, 554, 917 P.2d 692, 697 (1996) (holding that when read in context the prosecutor's comments, “[n]ow she's been, I think, honest when she says she wasn't even aware that [other witnesses] had seen her” and “I think [another witness] was an honest man, certainly an honest man, but I think he made an honest mistake” were not vouching).(Doc. 7-17 at 105).
Here, the prosecutor did not comment on the truthfulness of any witness's testimony or give personal assurances of any witness's credibility. Cf. United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (finding improper vouching when prosecutor “clearly urged that the existence of legal and professional repercussions served to ensure the credibility of the officers' testimony”). Petitioner has failed to show that the Arizona Court of Appeals' rejection of the above claim was unreasonable. See Joseph v. Coyle, 469 F.3d 441, 474 (6th Cir. 2006) (prosecutor's repeated use of “I believe” and “I think” did not constitute vouching where “it does not appear that the prosecution was acting intentionally in an attempt to influence the jury” on an improper basis); see also United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005) (stating that the prosecutor's use of the phrase, “we know,” was not improper when it was used “to marshal evidence actually admitted at trial and reasonable inferences from that evidence, not to vouch for witness veracity or suggest that evidence not produced would support a witness”).
viii. Use of Epithet
At the end of the State's rebuttal closing argument, the prosecutor stated: “I believe the evidence shows that this is a Kidnapping, and I'm asking that you hold this predator responsible and find him guilty of Kidnapping.” (Doc. 7-15 at 26). Petitioner asserted on appeal that the prosecutor's referral to Petitioner as a “predator” constituted misconduct. (Doc. 7-16 at 74). In rejecting the claim, the Arizona Court of Appeals stated:
¶ 58 Finally, Hollingsworth argues that the prosecutor committed misconduct by calling him a “predator.” The use of the term was a single isolated statement the prosecutor made after discussing the evidence that supported the assertion that Hollingsworth followed the victim and planned to sexually assault her. Although the use of the term “predator” was excessive and emotional language, see Jones, 197 Ariz. at 305, ¶ ¶ 36-37, 4 P.3d at 360 (noting that “excessive and emotional language is the bread and butter weapon of counsel's forensic arsenal”) (internal citations and quotation marks omitted), the isolated use of the term was not misconduct warranting reversal of the conviction. Consequently, no prejudicial fundamental error was committed during the closing arguments that so permeated the trial that it requires us to reverse the conviction.(Doc. 7-17 at 105).
The undersigned does not find that the prosecutor's reference to Petitioner as a “predator” during the prosecutor's rebuttal closing argument infected the trial with such “unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (explaining that it “is not enough that the prosecutor['s] remarks were undesirable or even universally condemned”) (internal quotation marks and citation omitted). The undersigned does not find that the Arizona Court of Appeals' rejection of Petitioner's final prosecutorial misconduct claim presented on appeal was contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts.
3. Conclusion
In summary, to the extent that Ground One of the Petition asserts any or all of the eight prosecutorial misconduct claims presented to the Arizona Court of Appeals on direct appeal, the undersigned finds that federal habeas relief is not warranted. The Arizona Court of Appeals' rejection of the prosecutorial misconduct claims was not “so lacking in justification” that it resulted in “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131 S.Ct. at 786-87. “[W]hile a defendant is entitled to a fair trial; he is not entitled to a perfect trial, for there are no perfect trials.” United States v. Payne, 944 F.2d 1458, 1477 (9th Cir. 1991) (internal quotation marks and citation omitted). Petitioner has failed to show that the Arizona Court of Appeals' rejection of his prosecutorial misconduct claims was contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the United States Supreme Court. The undersigned recommends that the Court deny Ground One.
B. Ground Three: Alleged Ineffective Assistance of Counsel
1. Analyzing the Merits of Habeas Claims Alleging the Ineffective Assistance of Counsel
In Ground Three, Petitioner asserts that his trial attorney was constitutionally ineffective for “fail[ing] to object to the prosecutor's repeated improper vouching.” (Doc. 1 at 8).
The “clearly established federal law” for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In assessing the performance factor of Strickland's two-part test, judicial review “must be highly deferential” and the court must try not “to second-guess counsel's assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In other words, it must be shown that the “likelihood of a different result [is] substantial, not just conceivable.” Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
Finally, on federal habeas review, the “pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Richter, 131 S.Ct. at 785. And “it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curium). “Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted).
2. Analysis
In support of Ground Three, Petitioner states:
During the State's final argument, the prosecutor repeatedly expressed his apparent personal support for the alleged victim's testimony and his distaste for the defendant. Despite these statements-which were essentially unanswered and allowed to stand- [Petitioner's] attorney did not object. The prosecutor's language should have been curbed by appropriate objections and order by the Court, but [Petitioner's] counsel simply allowed the prosecutor to vouch for his witness credibility, without providing the Court with the legal basis to remind the jury to disregard such inflammatory statements in a case where there was no evidence other than the word of the witness whose credibility was being vouched.(Doc. 1 at 8). Respondents concede that Petitioner fairly presented Ground Three to the state courts in his PCR proceeding. (Doc. 7 at 21-22; Doc. 7-17 at 144-50; Doc. 7-17 at 181-86). The last state court decision reviewing the claim in Ground Three is the Arizona Court of Appeals' ruling that affirmed the trial court's denial of PCR relief. (Doc. 7-17 at 190). Because the Arizona Court of Appeals adopted the trial court's decision, the U.S. District Court may review the trial court's decision as part of the review of the Arizona Court of Appeals' decision. Amado v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014) (explaining that when the last reasoned decision is a state appellate court decision which adopts or substantially incorporates lower state court decisions, the lower state court decisions may be reviewed as part of the review of the state appellate court's decision).
In its June 1, 2020 ruling, the trial court found that Petitioner failed to satisfy either prong of the Strickland test, explaining that the “‘vouching' cited by Defendant is not improper vouching as defined by the Courts” because “it is not improper vouching for the prosecutor to compare and contrast a defendant's pretrial statements with trial testimony.” (Doc. 7-17 at 178).
A defense attorney's failure to object during the prosecution's closing argument does not amount to deficient performance unless the prosecutor made egregious misstatements. Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (stating that “[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the ‘wide range' of permissible professional legal conduct.”) (citation omitted).
Here, Petitioner has not shown that his counsel's response to the prosecution's closing argument was deficient or prejudicial. As discussed in Section III(B)(2)(vii) above, the undersigned has found that the Arizona Court of Appeals reasonably found that the prosecutor did not engage in improper vouching during the prosecutor's closing argument. An attorney's “[f]ailure to raise a meritless argument does not constitute ineffective assistance.” Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985); see also Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) (defense counsel's failure to raise a meritless argument or to take a futile action does not constitute ineffective assistance of counsel); Toomey v. Bunnell, 898 F.2d 741, 743-44 (9th Cir. 1990) (“[P]etitioner must further show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. . . .In short, we find the prospects of success of the motion . . . too remote for counsel's failure to have pressed [the issue] to have constituted a sixth amendment violation.”). The undersigned finds that Petitioner has failed to show that the state courts' rejection of Ground Three is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. It is therefore recommended that the Court deny Ground Three.
C. Ground Four: Alleged Vindictive Prosecution
Ground Four of the Petition presents a vindictive prosecution claim. (Doc. 1 at 9). A prosecutor violates a defendant's constitutional right to due process of law when he brings additional charges solely to punish the defendant for exercising his rights. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The habeas petitioner making a claim of such a violation bears the burden to show that “charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.” United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). The petitioner must show that the prosecutorial conduct would not have occurred “but for” the prosecutor's “hostility or punitive animus towards the defendant because he has exercised his specific legal rights.” Id. at 1169; see also United States v. Frega, 179 F.3d 793, 802 (9th Cir. 1999) (no vindictiveness where defendant could not show that but for animus prosecutor would not have filed superseding indictment). The burden then shifts to the prosecutor to show a non-vindictive reason for bringing the charges. Gallegos-Curiel, 681 F.2d at 1168.
In Ground Four, Petitioner states that after the “first trial which led to a mistrial on the basis of prosecutorial misconduct, the State became vindictive and filed a notice of aggravators. However, the aggravators were never presented to the jury. Nevertheless the trial judge used the aggravators to enhance [Petitioner's] sentence 6.25 years more than the presumptive.” (Doc. 1 at 9). The Arizona Court of Appeals rejected Petitioner's claim on direct appeal, stating:
¶ 37 After the court declared a mistrial and before the start of the second trial, the State filed a notice of aggravating circumstances, which included the prior felony convictions and two other circumstances. See A.R.S. § 13-701(D). The notice did not, however, expose Hollingsworth to more punishment in the second trial than if there had not been a mistrial.
¶ 38 The jury subsequently found Hollingsworth guilty, and, at the presentencing hearing, the State proved that he had two prior historical felony convictions. As a result, the court was free to consider those felony convictions, as well as any statutory aggravating and mitigating factors, A.R.S. § 13-701(D)-(E), including the letters Hollingsworth presented in mitigation. The court, as a result, considered the prior felonies and found that the presumptive term was 15.75 years and a maximum aggravated term of 35 years, and was free to consider any relevant aggravating factors that could be found by the fact of the conviction. See Martinez, 210 Ariz. at 583, ¶ 16, 115 P.3d at 623 (the sentencing court can exercise discretion within a sentencing range established by the fact of a prior conviction, facts found by a jury, or facts admitted by
a defendant, and as a result, after a conviction, the court may consider any additional factors in determining what sentence to impose, so long as the sentence falls within the established range). As a result, the sentence imposed was within the court's discretion even if the State had not filed the notice of aggravating circumstances. Consequently, the record does not demonstrate that the trial court erred in denying the motion to dismiss based on prosecutorial vindictiveness. See State v. Bonfiglio, 228 Ariz. 349, 354, ¶ 21, 266 P.3d 375, 380 (App. 2011), affirmed, 231 Ariz. 371, 295 P.3d 948 (2013) (noting, “[a] trial court may use the same convictions to enhance or increase the sentencing range and to aggravate a defendant's sentence within the enhanced range”); see also State v. Webb, 140 Ariz. 321, 323, 681 P.2d 473, 475 (App. 1984) (concluding that there was no vindictive prosecution where “[t]he prosecutor did not charge [the defendant] with a higher crime”).(Doc. 7-17 at 102) (footnote omitted).
The Arizona Court of Appeals' conclusion above that the State's notice of aggravating circumstances did not “expose [Petitioner] to more punishment in the second trial than if there had not been a mistrial” is supported by the record. On January 9, 2012, before Petitioner's first trial, the State filed an Allegation of Prior Conviction(s) that amended the Indictment to allege that Petitioner had seven prior felony convictions.(Doc. 7-1 at 3). On June 27, 2012, the day Petitioner's first trial commenced, the trial court stated that based on the allegation of Petitioner's prior convictions, Petitioner would be considered a Category 3 repetitive offender and could be subject to a 35-year sentence. (Doc. 7-1 at 34). The trial court explained to Petitioner:
All the alleged prior convictions are from the Maricopa County Superior Court and are as follows: (i) Possession of Dangerous Drugs with One Historical Prior Felony Conviction, a class four felony; (ii) Theft of Means of Transportation with One Historical Prior Felony Conviction, a class three felony; (iii) two convictions for Failure to Register as a Sex Offender, a class four felony; (iv) two convictions for Possession of Dangerous Drugs, a class four felony; and (v) Aggravated Driving Under the Influence, a class five felony. (Doc. 7-1 at 3-4).
as a Category 3 repetitive offender, if you are convicted of either one of these kidnapping charges, the Court won't have any option but to send you to prison if the State's able to show those prior felony convictions they've alleged, and the
presumptive term of imprisonment would be 15.75 years. I could reduce that to as low as 10 and a half years, or I could increase it to as much as 35 years.(Id.). The trial court asked Petitioner: “Do you understand the prison range if you're convicted at trial?” (Id.). Petitioner replied “Yes, Your Honor, I do.” (Id.).
The Arizona Court of Appeals correctly concluded that the trial court's imposition of a 22-year sentence was within the court's discretion even if the State had not filed the notice of aggravating circumstances. “[T]he doctrine of vindictive prosecution does not apply when, as here, there has been no increase in the severity of the charge or the sentence imposed.” United States v. Kinsey, 994 F.2d 699, 701 (9th Cir. 1993). The Arizona Court of Appeals reasonably rejected Petitioner's claim in Ground Four. Accordingly, the undersigned recommends that the Court deny Ground Four.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court DISMISS WITH PREJUDICE Ground Two of the Petition (Doc. 1) and DENY Grounds One, Three, and Four on the merits.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's “Petition for Reconsideration” (Doc. 14) that seeks reconsideration of the Court's Order (Doc. 13) denying Petitioner's Motion (Doc. 11) requesting copies of case law or other legal authority used in Respondents' Answer or Court orders.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of Ground Two is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief.
This Report and 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 fourteen days from the date of service of a copy of this Report and 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 fourteen 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. 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).