Opinion
CV-21-00172-TUC-RM (JR)
08-04-2022
Jeremy Lee Koons, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Before the Court is Petitioner Jeremy Lee Koons' Petition Under 28 U.S.C.§ 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 1) Under the Local Rules of this District, the Petition was referred to Magistrate Judge Jacqueline Rateau for a report and recommendation ("R&R"). See LRCiv 72.1(a). The Magistrate Judge recommends that the District Court, after its independent review of the record, deny the Petition.
BACKGROUND AND PROCEDURAL HISTORY
The information in the background section is taken from various parts of the underlying record, including Petitioner's Notice of Completion. See Doc. 9-1 at 73-90.
Between December 2013 and September 2014, a skilled and industrious burglar made his way through a wide swath of small businesses in Tucson, Arizona. The thief had a particular modus operandi: To evade detection, he would enter the targeted business by cutting a hole in its door, walls, or roof large enough to safely reach the interior without tripping any alarms. Once inside, he would drill pilot holes in the bottom of the safe to access the company's unsecured deposits and revenues. It took a veteran lead detective and the discovery of DNA on an abandoned tool to link the burglaries to Petitioner Jeremy Lee Koons. Koons was caught red-handed, in the middle of a robbery, when authorities were able to follow his whereabouts from a tracking device attached to his car. During the day, Koons was a sheet metal worker involved in the installation of duct work in commercial buildings. It was also discovered that Koons had an accomplice-one of the foremen from his day job. At the culmination of the burglary spree, approximately forty businesses had been affected, resulting in total losses exceeding $100,000.
Criminal Indictment
On September 25, 2014, an Arizona grand jury returned a twenty-nine count indictment against Koons and his accomplice. (Doc. 9-1 at 16-20) Koons was charged with one count of conspiracy to commit burglary, one count of theft, one count of criminal damage, and eleven counts of third-degree burglary. Id. at 16-18.
Jury Trial & Sentencing
On July 8, 2016, a jury convicted Koons of one count of theft, one count of criminal damage, and nine counts of third-degree burglary. Id. at 22-27. He was sentenced to a combination of consecutive and concurrent terms of imprisonment totaling 19.25 years, and he was ordered to pay over $100,000 in restitution. Id. at 5, 28.
Direct Appeal
The same day as the jury's verdict, Koons filed a notice of appeal. Id. at 31. On appeal, Koons argued that: (i) the trial court abused its discretion in denying his motion to suppress a tracking warrant; and (ii) the court erroneously imposed restitution for a victim who had been dismissed from the case. Id. at 39-52. The Arizona Court of Appeals affirmed Koons' convictions ruling that the trial court did not abuse its discretion in determining that probable cause existed to place a tracking device on his vehicle and that restitution was owed to the dismissed victim due to a stipulation by the parties. Id. at 414. Koons appealed the decision, id. at 54-65; and on January 9, 2018, the Arizona Supreme Court denied his petition for review, id. at 67.
Petition for Post-Conviction Relief
On January 18, 2018, Koons filed a notice for post-conviction relief ("PCR Notice") with the trial court. (Doc. 9-1 at 71) The court appointed counsel for Koons and counsel filed a notice of completion indicating that he had reviewed the record and was unable to find any colorable claims for post-conviction relief. Id. at 73-90. Counsel requested that the court extend the time for filing a pro se petition so that Koons could file his own petition. Id. at 90.
On February 27, 2019, Koons filed a pro se petition for post-conviction relief, raising four grounds of ineffective assistance of counsel. Id. at 92-110. Koons argued that counsel was ineffective for failing to: (i) object to a duplicitous indictment; (ii) conduct an adequate pretrial investigation; (iii) accept an expired plea bargain the first day of trial; and (iv) hire a mitigation specialist to file a mitigation report at sentencing. Id. at 96-108.
On September 13, 2019, the court denied Koons' petition ruling that counsel did not provide ineffective assistance because the indictment was not duplicitous, there was no evidence indicating that Koons' co-defendant was an informant, he failed to demonstrate that access to his coplink file would have changed the outcome of trial, Koons abandoned his argument about counsel's failure to obtain his police interrogation video, he failed to establish that there was an available plea offer the first day of trial, and Koons failed to demonstrate actual prejudice by counsel's alleged failure to hire a mitigation specialist. (Doc. 1 at 47-50)
On October 21, 2019, Koons appealed the denial of his post-conviction petition. (Doc. 9-1 at 123, 125-41) In his opening brief to the Arizona Court of Appeals, Koons reasserted that trial counsel failed to challenge a duplicitous indictment, id. at 130, and he argued that A.R.S. § 13-1801(B) failed to "give the state authority to inject multiple charges into a single count," id. at 135. Koons also argued that, had counsel objected to the duplicitous indictment, he would have accepted a plea agreement. Id. at 137. In a memorandum decision issued five months after Koons filed his appeal, the Arizona Court of Appeals granted review but denied relief. (Doc. 1 at 43) The court ruled that Koons failed to demonstrate that trial counsel's conduct fell below reasonable standards, or that even if Koons was able to demonstrate that counsel's conduct had fallen below a standard of reasonableness, that he failed to demonstrate any prejudice by his attorney's alleged deficient performance. Id. at 46. Koons appealed the ruling to the Arizona Supreme Court, (Doc. 9-1 at 143-55), which denied his petition on January 8, 2021. Id. at 157.
Federal Habeas Petition
On April 22, 2021, Koons filed the federal habeas Petition at hand. See Doc. 1. In his Petition, Koons raises two grounds for relief. Id. at 5-42. Koons' first argument is that an invalid warrant was used to place a tracking device on his vehicle, in violation of the Fourth Amendment to the Constitution. Id. at 5, 16-28. Koons' second argument is that he received ineffective assistance of counsel due to counsel's failure to object to a duplicitous indictment, in violation of the Fifth and Fourteenth Amendments to the Constitution. Id. at 7, 29-42. This R&R follows.
LEGAL STANDARDS
Habeas Corpus Review
To be eligible for federal habeas corpus relief, a state prisoner must establish that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Court's analysis of the merits of a petitioner's claims is constrained by the applicable standard of review. A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d). Price v. Vincent, 538 U.S. 634, 638 (2003). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a "highly deferential standard for evaluating state-court rulings, which demands that statecourt decisions be given the benefit of the doubt." Woodfordv. Visciotti, 537 U.S. 19, 24 (2002) (internal citation omitted). Under AEDPA, the federal habeas court cannot grant relief unless the state court decision involved an unreasonable application of clearly established federal law or 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). A state court's decision involves an unreasonable application of clearly established federal law if it "identifies the correct governing principle ... but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000). In considering a challenge to a state court's determination of the facts, state court factual findings are presumed to be correct, and a petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). "When applying AEDPA's standards, [the federal habeas court] reviews the last reasoned decision by a state court addressing the issue at hand." Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2013) (cleaned up).
Exhaustion Doctrine
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a prisoner must afford the state courts the opportunity to rule upon the merits of his federal claims by fairly presenting them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004). "[I]n Arizona, unless a prisoner has been sentenced to death, the highest court requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals either on direct appeal or in a petition for post-conviction relief. Date v. Schriro, 619 F.Supp.2d 736, 762 (D. Ariz. 2008) (cleaned up).
A claim is fairly presented to the court if the prisoner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The prisoner must have "characterized the claims he raised in state proceedings specifically as federal claims." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), amended and superseded on other grounds, 247 F.3d 904 (9th Cir. 2001). "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." Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
However, "[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion" if there are no state remedies still available to him. Coleman v. Thompson, 501 U.S. 722, 732 (1991). "This is often referred to as 'technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy." Thomas v. Schriro, No. CIV 07-178-TUC-CKJ, 2009 WL 775417, at *4 (D. Ariz. Mar. 23, 2009). "If no state remedies are currently available, a claim is technically exhausted, but procedurally defaulted." Garcia v. Ryan, No. CV-12-01310-PHX-SRB, 2013 WL 4714370, at *8 (D. Ariz. Aug. 29, 2013).
Procedural Default Doctrine
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman, 501 U.S. at 729. "This rule applies whether the state law ground is substantive or procedural." Id. To be independent, the state law ground must not be interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). "A state law ground is so interwoven if the state has made application of the procedural bar depend on an antecedent ruling on federal law such as the determination of whether federal constitutional error has been committed." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (cleaned up). To be adequate, the state law ground must be strictly or regularly followed and "consistently applied." Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996). "[U]nless the state court makes clear that it is resting its decision denying relief on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon federal grounds, and the petitioner may seek relief in federal court." Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir. 1994).
Procedural default may be excused under limited circumstances. Coleman, 501 U.S. at 750. "When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate [state law ground], federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Clark v. Chappell, 936 F.3d 944, 966 (9th Cir. 2019) (internal quotation marks and citation omitted). Cause requires showing "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice requires "showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). The Court need not examine the existence of prejudice if the petitioner fails to establish cause. Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991). A fundamental miscarriage of justice requires showing "that a constitutional violation has probably resulted in [a] conviction when [the petitioner] was actually innocent of the offense." Cook v. Shiro, 538 F.3d 1000, 1028 (9th Cir. 2008) (internal quotation marks and citation omitted).
DISCUSSION
I. Fourth Amendment Claim
Koons' first ground for habeas relief rests on the argument that the trial court issued an invalid tracking warrant to monitor the movement of his vehicle, in violation of the Fourth Amendment to the Constitution. (Doc. 1 at 5, 16-28) Koons argues that the warrant was invalid because the affidavit used to support it was unsworn, the warrant lacked sufficient particularity, the warrant lacked probable cause, the warrant omitted necessary material facts, and the warrant was issued at night without cause. Id. at 16-28. Respondents argue that Koons' Fourth Amendment claim is incognizable because he had a full and fair opportunity to litigate the claim in state court and that he fails to demonstrate that his claim falls within one of the narrow exceptions to the exclusionary rule. (Doc. 9 at 13) The issue for the Court to determine is whether Koons' had a full and fair opportunity to litigate his Fourth Amendment claim in state court. If not, Koons may have an alternate avenue to habeas corpus relief. The Magistrate Judge finds that Koons had a full and fair opportunity to litigate his Fourth Amendment claim in the state courts and that he failed to fairly present his insufficient particularity claim to the Arizona Court of Appeals. Accordingly, it is the Magistrate Judge's recommendation that District Court deny ground one of Koons' Petition.
A. Stone Doctrine Bars Review
"The Fourth Amendment protects the right to be free from unreasonable searches and seizures, but it is silent about how this right is to be enforced." Davis v. United States, 564 U.S. 229, 231 (2011) (internal quotation marks omitted). "To supplement the bare text, th[e Supreme Court] created the exclusionary rule." Id. at 231-32. "The rule excludes both the primary evidence obtained as a direct result of an illegal search or seizure as well as evidence later discovered and found to be derivative of an illegality." United States v. Castaneda, 196 F.Supp.3d 1065, 1070 (D. Ariz. 2016) (cleaned up). The Supreme Court, however, has determined that exclusionary rule claims are barred from § 2254 habeas petitions if the petitioner had a full and fair opportunity to litigate the claims in state court. See Stone v. Powell, 428 U.S. 465, 482 (1976) ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.") "All Stone v. Powell requires is the initial opportunity for a fair hearing." Newman v. Wengler, 790 F.3d 876, 881 (9th Cir. 2015). "[A] fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action, including whether or not the trial court has made express findings of fact." Id. Under the Stone doctrine, "[t]he relevant inquiry is whether [the] petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
As Respondents persuasively argue, the Stone doctrine bars habeas review of Koons' Fourth Amendment claim because the record demonstrates that he had a full and fair opportunity to litigate his claim in state court. Koons' opening brief on appeal indicates that he filed a motion to suppress the tracking warrant prior to trial, Doc. 9-1, ¶ 8 at 41; the trial court held an evidentiary hearing on the issue, id. ¶¶ 9, 30 at 41, 49; and Koons raised the same claim on appeal with the Arizona Court of Appeals, id. ¶¶ 12-31 at 42-49. The record also indicates that the Arizona Court of Appeals dismissed the claim, on its merits, after a thorough analysis in its ruling affirming his convictions. See Doc. 9-1, ¶¶ 8-18 at 7-13. As such, Koons' Fourth Amendment claim is barred from further review under the Stone doctrine and should be denied.
B. Particularity Claim Procedurally Defaulted
Notwithstanding the aforementioned bar to habeas review, Koons argues that he failed to have a full and fair opportunity to litigate his Fourth Amendment claim because "not one Arizona court has addressed the lack ofparticularity in this defective warrant or gave consideration on this issue." (Doc. 12 at 1) (emphasis added). However, this argument is unpersuasive, as the record demonstrates-despite Koons' misleading record citations to the contrary, see id.,-that Koons never fairly presented a warrant specificity argument to the Arizona Court of Appeals on direct appeal or in a petition for postconviction relief. See Doc. 9-1 at 33-52, 125-138. As such, Koons' Fourth Amendment warrant particularity argument is barred from review because it is procedurally defaulted. See Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (cleaned up) ("[T]o fairly present an issue to a state court, a petitioner must present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief."); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) ("[C]itation of a relevant federal constitutional provision in relation to some other claim does not satisfy the exhaustion requirement."); Picardv. Connor, 404 U.S. 270, 276 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). The Magistrate Judge recommends that Koons' Fourth Amendment claim also be denied on his alternate theory of relief.
II. Ineffective Assistance of Counsel
Koons' second ground for habeas relief relies on the argument that he received ineffective assistance of trial counsel due to counsel's failure to object to, or "cure," a duplicitous indictment, in violation of his Fifth and Fourteenth Amendment constitutional rights. (Doc. 1 at 7, 29-42) Koons argues that the indictment against him was duplicitous because count two of the indictment charged "twenty[-]five separate and distinct offenses," and count three charged "thirty[-]five separate and distinct offenses," and that "any reasonably competent attorney would have attempted to correct the duplicitous indictment to remove these charges from the count to avoid the jury from incorrectly having to decide the issue of guilt or innocence of these charges[.]" Id. at 30, 31. The duplicitous indictment, he argues, lead to a number of negative collateral consequences. Id. at 33-42. In response, and reading Koons' Petition more liberally than he intended, Respondents argue that each collateral consequence of the alleged duplicitous indictment constitutes a separate ineffective assistance of counsel ("JAC") claim that either lacks merit or is procedurally defaulted. (Doc. 9 at 12-27) Assuming arguendo that Koons' claims survive procedural default, the issue for the Court to determine is whether any of his JAC claims survive merits-based review. The Magistrate Judge finds that Koons fails to convincingly argue- much less demonstrate-that the Arizona Court of Appeals unreasonably applied the Strickland standard to his JAC claims. It is the Magistrate Judge's recommendation that the District Court deny ground two of Koons' Petition.
Koons asserts that "[t]he State of Arizona has incorrectly broken down petitioners [S]ixth [A]mendment ineffective assistance of trial counsel claim based on a duplicitous indictment in violation of the due process clause of the [F]ifth [A]mendment into multiple subparts. (Doc. 12 at 3).
A. State Court Application of Strickland Reasonable
The pivotal question in determining whether Koons should be granted habeas relief for his JAC claims is whether the state court's application of the standard elucidated in Strickland v. Washington, 466 U.S. 668, 687 (1984), was unreasonable, not whether trial counsel acted unreasonably by failing to object to an alleged duplicitous indictment. See Harrington v. Richter, 562 U.S. 86, 101 (2011) (concluding that whether a state court's application of the Strickland standard was reasonable is different than asking whether defense counsel's performance fell below Strickland's standard). Moreover, Section 2254(d) preserves authority to issue the writ in cases where "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" Supreme Court precedent. Harrington, 562 U.S. at 102. The Arizona Court of Appeals' thorough analysis of the IAC claims raised in Koons' PCR appeal fails to rise to that level.
In his opening brief appealing the trial court's denial of his PCR petition, Koons argued that he received ineffective assistance of trial counsel due to counsel's failure to challenge a duplicitous indictment. (Doc. 9-1 at 127-138) In terms of deficient performance, Koons argued that his attorney's "complete failure to challenge the duplicitous indictment at every critical stage of the proceeding falls below the objective standard of reasonableness as defined by prevailing professional norms." Id. at 130. As to prejudice, Koons asserted that he had established a reasonable probability that, had counsel "cured" the duplicitous indictment, he would have signed a plea agreement and avoided trial. Id. at 137. In denying Koons' post-conviction appeal of his IAC claim, the Arizona Court of Appeals ruled, in pertinent part:
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance fell below reasonable standards and that the deficient performance prejudiced him. If a defendant fails to establish either prong, the claim fails. In addition, a defendant cannot meet his burden by mere speculation.
The state has discretion in drafting an indictment to charge as one count separate criminal acts that occurred during the course of a single criminal undertaking even if those acts might otherwise provide a basis for charging multiple criminal violations. Contrary to Koons's suggestion otherwise, § 13-1801(B) expressly allows the state to aggregate in the indictment amounts taken in thefts that are part of one scheme or course of conduct, even if the amounts are taken from multiple people, for classification purposes. And § 13-1605 similarly provides that "[a]mounts of damage caused pursuant to one scheme or course of conduct, whether to property of one or more persons, may be aggregated in the indictment or information at the discretion of this state in determining the classification of [a criminal damage] offense."
Koons has provided no affidavits or other evidence in the trial court suggesting that trial counsel's failure to object to the indictment falls below reasonable standards. And he cites no authority in his petition for review, nor did he below, showing similar decisions by counsel have been found to constitute ineffectiveness. Notably, if the acts had not been aggregated into a single theft and criminal damage count, Koons potentially faced dozens of additional charges. And, if convicted, those sentences could have run consecutively, exposing him to at least as much, if not more, prison time as he received for the single counts. Accordingly, Koons has not met his burden of showing counsel's conduct fell below reasonable standards.
Koons also seems to suggest that he was prejudiced by trial counsel's failure to object to the duplicitous indictment because, had counsel done so, he would have accepted a plea agreement. But it is unclear how the indictment, or any change thereto, would have affected Koons's decision to plead guilty. After the state extended Koons a plea offer in July 2015, the trial court conducted a hearing and found Koons had "been adequately advised of the plea offer and knowingly, intelligently and voluntarily reject[ed] the plea offer." Whether the state would have extended another plea offer in response to any objection to the indictment is purely speculative. Koons, thus, has not met his burden of establishing prejudice.
(Doc. 1 at 45-46) (internal quotation marks, footnote, and citations omitted).
As it applies to federal habeas claims of ineffective assistance of counsel, "relief may be granted only if the state-court decision unreasonably applied the more general standard for ineffective-assistance-of-counsel claims established by Strickland." Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). "The question is not whether a federal court believes the state court's determination under Strickland was incorrect but whether it was unreasonable-a substantially higher threshold." Id. at 129 (cleaned up). "And, because Stricklands is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id.
In Miles v. Ryan, the Ninth Circuit defined what constitutes deficient performance and prejudice under Strickland. 713 F.3d 477 (9th Cir. 2013). It observed:
[D]eficient performance-requires a showing that counsel's performance fell below an objective standard of reasonableness, or was outside the wide range of professionally competent assistance. The test is highly deferential, evaluating the challenged conduct from counsel's perspective at the time in issue. This inquiry should begin with the premise that under the circumstances, the challenged actions might be considered sound trial strategy. Under this objective approach, we are required to affirmatively entertain the range of possible reasons counsel might have proceeded as he or she did.
[P]rejudice-requires the petitioner to demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Further, as with any claim of constitutional error in a federal habeas case applied to state prisoners, an additional, essentially overlapping, harmless error standard applies: whether the constitutional error had substantial and injurious effect or influence in determining the outcome.Id. at 486-87 (cleaned up).
The Petition at hand is replete with irrelevant and speculative arguments as to why Koons' trial attorney performed below a hypothetical standard of reasonableness. The only arguments even remotely challenging the reasonableness of the Arizona Court of Appeals' Strickland application is the argument that the ruling failed to address whether the indictment was legally duplicitous, (Doc. 1 at 33-37), and the argument that the decision failed to address Koons' allegation that he was convicted of a crime that was omitted from the indictment, Id. at 37-38. However, both of these arguments lack persuasive support and fail to demonstrate that the court's Strickland application was unreasonable.
It is evident from the Court of Appeals decision that it analyzed Koons' IAC claim using the appropriate standard, which emphasizes that it is the defendant's burden to prove both deficient performance and prejudice. See Strickland, 466 U.S. at 687 ("First, the defendant must show that counsel's performance was deficient ... Second, the defendant must show that the deficient performance prejudiced the defense."). The court also correctly: (i) reiterated Arizona law in terms of aggregating amounts taken in thefts committed under one scheme or course of conduct in the indictment; (ii) determined that Koons failed to provide evidence and caselaw to support his contention that he suffered deficient performance from his attorney; (iii) noted that Koons' initial plea offer was no longer available; (iv) observed that Koons could have been sentenced to a far lengthier sentence had the prosecution charged him with each individual commercial burglary; and (v) declined to address Koons' argument that he was convicted for the burglary of a Family Dollar Store even though the burglary was allegedly omitted from the indictment, as Koons' petition for post-conviction relief contained no such argument, see Doc. 9-1 at 92-113; Greene v. Fisher, 565 U.S. 34, 38 (2011) ("[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.). Because Koons fails to plausibly argue or demonstrate that the Arizona Court of Appeals unreasonably applied Strickland to his claims of ineffective assistance of counsel, the Magistrate Judge recommends that this ground for habeas relief also be denied.
RECOMMENDATION
The Magistrate Judge RECOMMENDS that the District Court, after its independent review, deny Koons' Petition Under 28 U.S.C.§ 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1), direct the Clerk of Court to enter judgment in favor of Respondents and against Petitioner, and dismiss this action.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's Judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this Recommendation to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Federal Rules of Civil Procedure 6(a) and (e), and 72(b). Thereafter, the parties have fourteen (14) days to file a response to the objections. Replies shall not be filed without first obtaining leave from the District Court. If any objections are filed, this action should be designated case number: CV 21-172-RM-JR. Failure to file timely objections to any of the Magistrate Judge's factual or legal determinations may 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).
Under Rule 11(a) of the Rules Governing Section 2254 Cases, "the district court must issue or deny a certification of appealability when it enters a final order adverse to the applicant." Under 28 U.S.C. 2253(c)(2), a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." The Magistrate Judge recommends that, should the R&R be adopted, the District Court decline to issue a certificate of appealability because Petitioner has failed to make a substantial showing of the denial of a constitutional right.