Opinion
CV-21-02094-PHX-JJT (MTM)
10-11-2022
Gabriel Macias, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Petitioner Gabriel Macias petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Docs. 1, 3.
I. SUMMARY OF CONCLUSION
A jury in Yuma County Superior Court convicted Petitioner of sex offenses involving minors. Petitioner asserts in Ground One that the statute under which the jury convicted him unconstitutionally shifted the burden of an element of the offense; in Ground Two that the jury prematurely weighed evidence and decided probative issues; and in Grounds Three, Four and Five that trial and appellate counsel provided ineffective assistance of counsel. Ground One is unexhausted and procedurally defaulted without excuse. Grounds Two, Three, Four and Five are without merit. The Court recommends the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction & Sentencing
The Arizona Court of Appeals recounted the facts of Petitioner's case:
¶3 Macias taught fourth, fifth, and sixth grades and sex education classes from 2003 to 2006. In 2013, one of Macias' former students reported to police that Macias had touched him inappropriately when he was a student. During the subsequent investigation, the police located other former students who also reported being touched inappropriately by Macias. Several of these victims also reported Macias showed them pornographic material at his home.
¶4 The police executed a search warrant on Macias' home and seized adult pornographic VHS tapes; compact discs containing both adult pornography and a pornographic video of a child performing a sex act on an adult; Playboy and Maxim magazines; a college paper written by Macias that discussed sex in ancient Greek society between older men and young men in a positive light; and a computer that contained: (1) nude videos of Macias and E.V. as a young teenager; (2) inappropriate chat messages between Macias and E.V.; and (3) two computer diary entries, titled “Losing [E.V.],” detailing Macias' emotional turmoil after E.V.'s parents discontinued contact between them. Following his arrest, Macias granted the police access to his iPhone, which contained videos of E.V. masturbating and a video of Macias masturbating while whispering, M love you [E.V.]. This is only for you.”Doc. 1-3 at 109.
Petitioner was charged with molestation of a child, sexual assault, sexual abuse, furnishing harmful items to minors, child prostitution, sexual conduct with a minor, sexual exploitation of a minor, and aggravated assault with sexual motivation. Doc. 9-1 at 3-10. The Superior Court dismissed two charges, and the jury acquitted Petitioner of one sexual exploitation charge. Doc. 1-3 at 108. The jury convicted Petitioner on: one count of sexual assault; one count of sexual abuse; four counts of child molestation; seven counts of furnishing harmful items to minors; one count of child prostitution; one count of sexual exploitation of a minor; and one count of aggravated assault with a sexual motivation. Doc. 1-3 at 108. Petitioner was sentenced to “a term of life imprisonment without the possibility of release for thirty-five years for sexual conduct with a minor and to consecutive and concurrent presumptive prison terms totaling an additional 114.25 years for all remaining counts.” Doc. 1-3 at 109.
B. Direct Appeal and Post-Conviction Relief
Petitioner appealed to the Arizona Court of Appeals. Doc. 1-3 at 11-84. The Arizona Court of Appeals reversed one conviction for furnishing harmful items to minors, vacated the convictions on one count of sexual assault and one count of sexual abuse, and affirmed the convictions and sentences on the remaining counts. Doc. 1-3 at 108.
The Arizona Supreme Court denied Petitioner's petition for review. Doc. 1-3 at 142.
C. Post-Conviction Relief Proceedings
Petitioner filed a notice of post-conviction relief (PCR). Doc. 1-3 at 144. The Superior Court denied relief. Doc. 1-7 at 4-8. Petitioner appealed (doc. 1-7 at 10-41); the Arizona Court of Appeals granted review but denied relief. Doc. 1-7 at 72-84. On February 16, 2021, the Arizona Supreme Court denied review. Doc. 1-7 at 129.
III. PETITION FOR A WRIT OF HABEAS CORPUS
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).
On December 9, 2021, Petitioner filed his habeas petition. Doc. 1. As summarized in the Court's Order, Petitioner raised the following grounds for relief:
In Ground One, Petitioner alleges that he was convicted of child molestation under statutes that shifted the burden to him to disprove sexual intent in violation of Fourteenth Amendment due process. In Ground Two, he alleges he was convicted in violation of his Sixth and Fourteenth Amendment rights because the jury prematurely weighed evidence and decided probative issues before official jury deliberations. In Ground Three, Petitioner alleges the denial of the effective assistance of trial and appellate counsel where they failed to challenge the burden shifting scheme of state child molestation statutes. In Ground Four, he alleges the denial of the effective assistance of trial and appellate counsel by failing to investigate and present evidence to support the Fourth Amendment's “good-faith exception” did not apply to evidence seized pursuant to an unconstitutionally stale warrant. Finally, in Ground Five, he alleges he was denied the effective assistance of trial and appellate counsel when they failed to challenge the charges and convictions for furnishing harmful items to minors as unconstitutionally vague.Doc. 4 at 2.
This Court may not grant habeas relief for any claim a state court adjudicated on its merits “unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). A state court concluding a petitioner's claim lacks merit “precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2001). A petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
This Court reviews the last reasoned state-court decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021). A federal court reviewing a habeas petition “should ‘look through' an unexplained decision to the last related state-court decision that does provide relevant rationale.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
A. Petitioner Is Not Entitled to Relief on Grounds Three, Four, and Five Because He Did Not Receive Ineffective Assistance of Counsel.
To succeed on a claim of ineffective assistance of counsel, a movant must show: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) “the deficient performance prejudiced the [movant's] defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (citation omitted). “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
On habeas review, the petitioner carries the burden of showing “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). “When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If a petitioner fails to establish one of Strickland's two prongs, the Court need not address the other. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998) (“We have previously held that it is unnecessary to consider the prejudice prong of Strickland if the petitioner cannot even establish incompetence under the first prong.” (citation omitted)).
1. Ground Three - challenging the constitutionality of A.R.S. § 13-1410 and -1407(E)
In May v. Ryan, 245 F.Supp.3d 1145, 1156-64 (D. Ariz. 2017), the district court granted habeas relief on a claim that A.R.S. §§ 13-1410 and 1407(E) unconstitutionally shifted the burden onto defendants to disprove sexual intent. The district court concluded counsel was ineffective for failure to raise this issue on direct review. Id. at 1165-71. However, on appeal the Ninth Circuit vacated the district court's judgment on that issue. 807 Fed.Appx. 632, 634-35 (9th Cir. 2020).
In Ground Three Petitioner asserts ineffective assistance of both appellate and trial counsel, alleging ineffectiveness for the same reason at issue in May v. Ryan - failure to challenge the constitutionality of A.R.S. § 13-1410 and -1407(E). Doc. 1 at 13.
Appellate Counsel's Performance
In the instant case, in analyzing the performance of Petitioner's appellate counsel, the Arizona Court of Appeals noted “[a]ppellate counsel is not ineffective for selecting some issues and rejecting others.” Doc. 1-7 at 78 (quoting Jones v. Barnes, 463 U.S. 745, 752-53 (1983)). It further noted that courts have rejected ineffective-assistance claims “where a defendant faults his former counsel . . . for failing to predict future law and have warned that clairvoyance is not a required attribute of effective representation.” Doc. 1-7 at 78 (quoting Bullockv. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002)). The Arizona Court of Appeals quoted the reasoning of the 9th Circuit in May v. Ryan and concluded “[a]ppellate counsel did not render ineffective assistance by selecting more viable issues to press on appeal.” Doc. 1-7 at 79; 807 Fed.Appx. at 634-35.
This Court finds that in concluding that Petitioner failed to show his appellate counsel was ineffective, the Arizona Court of Appeals did not unreasonably apply Strickland or other United States Supreme Court precedent. As the Ninth Circuit stated in May, “[g]iven the long-standing Arizona rule that the State is not required to prove sexual intent to successfully prosecute a defendant for child molestation, which provided the background for the ‘prevailing professional practice at the time of the trial,' we cannot conclude that trial counsel's failure to object to the constitutionality of the statute's placing the burden of proving lack of intent on the defendant ‘fell below an objective standard of reasonableness.'” 807 Fed.Appx. at 634-35.
Petitioner asserts the Arizona Court of Appeals misstated the record because this was not a situation of counsel strategically choosing some issues for appeal over others. Doc. 15 at 28-29. He includes appellate counsel's subsequent declaration filed in the PCR proceedings that she did not think about the burden-shifting issue in Petitioner's case. Doc. 1-6 at 125. In the affidavit, appellate counsel states she had previously raised the issue in another case that “ultimately succeeded in a writ for habeas corpus to the United States District Court for the District of Arizona.” Doc. 1-6 at 125. It appears that appellate counsel is referencing the district court decision in May; however the fact remains that the burdenshifting issue did not succeed before the 9th Circuit Court of Appeals, see May, 807 Fed.Appx. 632. Accordingly, Petitioner's argument - that appellate counsel was ineffective for not presenting the burden shifting issue on appeal - is not persuasive in light of May, and does not alter the analysis that the Arizona Court of Appeals did not unreasonably apply Strickland or other United States Supreme Court precedent in concluding Petitioner failed to show his appellate counsel was ineffective.
Trial Counsel's Performance
In light of its finding that appellate counsel was not ineffective, the Arizona Court of Appeals did not address trial counsel's performance. Doc. 1-7 at 79-80. As a result, this Court reviews the Superior Court's ruling as the last reasoned state-court decision on trial counsel's effectiveness. See Wilson, 138 S.Ct. at 1192. The Superior Court had addressed the effectiveness of trial and appellate counsel together, finding that “trial and appellate counsel did not fall below prevailing professional norms or objective standards of reasonableness by not knowing a Federal court would subsequently find the statutes did violate due process.” Doc. 1-7 at 45.
In finding that trial counsel's performance did not fall below an objective standard of reasonableness, the Superior Court did not unreasonably apply Strickland or other United States Supreme Court precedent. See May, 807 Fed.Appx. at 634-35 (holding counsel not ineffective for declining to raise same burden-shifting issue raised by Petitioner); see also Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.”).
Because the Arizona courts did not unreasonably apply federal law, Ground Three lacks merit.
2. Ground Four - challenging a failure to investigate and present evidence the good-faith exception did not apply to the invalid search warrant
On direct appeal, the Arizona Court of Appeals held that a search warrant from a magistrate at the Yuma Municipal Court, which led to police finding much of the evidence used against Petitioner at trial, “was based on stale information and therefore invalid.” Doc. 1-3 at 112. But noting that “[a] Fourth Amendment violation does not mandate reflexive exclusion of evidence,” doc. 1-3 at 112 (citation omitted), the Arizona Court of Appeals applied the good-faith exception and affirmed the Superior Court's admission of the evidence. Doc. 1-3 at 114.
The Arizona Court of Appeals rejected Petitioner's contention the good-faith exception should not apply because of magistrate misconduct. Doc. 1-3 at 113. The Arizona Court of Appeals stated, “the issue is whether the evidence of the magistrate's conduct . . . indicates she abandoned her impartiality or was unable to act in a neutral and detached manner.” Id. (citation omitted). Petitioner had to have shown the magistrate's conduct “exhibited] ‘systemic or patent partiality' such that ‘the police knew or should have known that the magistrate was acting as a “rubber stamp” for a police investigation.'” Id. (citations omitted). But Petitioner “proffered no evidence, either in the trial court or on appeal, suggesting the issuing magistrate displayed systemic partiality toward law enforcement that would justify application of the exclusionary rule.” Id.
In Ground Four Petitioner asserts that trial and appellate counsel provided ineffective assistance because they failed to investigate the impartiality of the magistrate who issued the search warrant. Petitioner asserts that an investigation by prior counsel would have revealed warrant-application records from the Yuma Municipal Court and Yuma Police Department were not properly kept. He further asserts “municipal-court and police-department records-had prior counsel sought them-would have shown that the magistrate approves 100% of search-warrant applications.” Doc. 3 at 39 (emphasis in original); see also Doc. 1 at 14-16.
The Arizona Court of Appeals rejected this argument:
¶26 As noted above, we presume a judicial officer is free of bias and prejudice, and a defendant challenging impartiality must prove it by a preponderance of the evidence. A defendant does not overcome the presumption and prove impartiality by claiming the proof is not there. Whether the Yuma Municipal Court is maintaining the appropriate records does not prove that the issuing magistrate, in this case, abandoned his role. There is still no evidence that this magistrate displayed systemic partiality such that the investigating officers should have known the warrant was stale, and they could not rely on the magistrate's determination. Hyde, 186 Ariz. at 275, 921 P.2d at 678.Doc. 1-7 at 116. The Arizona Court of Appeals concluded Petitioner suffered no prejudice from trial counsel's failure to investigate and challenge the lack of records. Doc. 1-7 at 117.
The Arizona Court of Appeals' conclusion that Petitioner was not prejudiced by counsel's conduct was not an unreasonable application of Strickland's prejudice prong. As the Arizona Court of Appeals noted, Petitioner's argument was that, because of poor recordkeeping:
it is impossible for anyone who has a search warrant issued by that court to determine whether the magistrate abandoned his or her impartial role. [Petitioner] suggests we should therefore assume bias.Id. at 116. This Court finds that Petitioner was not prejudiced by counsel's lack of investigation, because even if counsel had investigated and found the records were not maintained, the remedy would not have been to assume bias of the magistrate. To invoke the exclusionary rule, Petitioner still would have needed some other proof of actual bias apart from the magistrate's warrant approval rate. As the Arizona Court of Appeals noted, rebutting the presumption of judicial impartiality requires a showing of actual bias; speculation does not meet that standard. Id. at 115. Accordingly, because the Arizona Court of Appeals did not unreasonably conclude that Petitioner failed to show he was prejudiced by counsel's failure to investigate this inherently speculative issue, Petitioner is not entitled to relief on Ground Four as it relates to trial counsel. See Gallegos v. Ryan, 820 F.3d 1013, 1035 (9th Cir. 2016), opinion amended on reh'g, 842 F.3d 1123 (9th Cir. 2016) (holding that “speculative assertions that more consultation with an expert could somehow have aided” the defense's preparation was insufficient to establish prejudice).
Because the Arizona Court of Appeals did not discuss appellate counsel's performance on this issue, the Superior Court's order is the last reasoned state-court decision for this Court to review. See Wilson, 138 S.Ct. at 1192. The Superior Court denied Petitioner's claim on both prongs:
Trial and appellate counsel did not fall below professional practice norms or below prevailing below objective standards of reasonableness by their failure to claim the Good Faith Exception did not apply because the judge issuing the search warrant did not keep records of her prior warrant decisions, and that she was a “rubber stamp” for officers seeking a search warrant. These claims are based upon speculation and hindsight. Over-looking speculative evidence to support the claims also does not show a reasonable probability that the verdicts would have been different if the inaction did not occur.Doc. 1-7 at 45. In this analysis, the Superior Court also did not unreasonably apply Strickland. For the same reasons discussed above as to trial counsel, Petitioner suffered no prejudice from appellate counsel's failure to raise this speculative issue, and Petitioner is not entitled to relief on Ground Four as it relates to appellate counsel.
3. Ground Five - Challenging the “furnishing harmful items to minors” element
Petitioner asserts trial and appellate counsel provided ineffective assistance because they failed to the challenge the furnishing-harmful-items-to-minors charges. He argues that the indictment fails to cite the definitional statute for “harmful to minors.” Doc. 3 at 43.
In rejecting Petitioner's claim, the Arizona Court of Appeals stated:
¶34 Rule 13.1(d) requires that a charging document cite the statute that a defendant allegedly violated. Typically, this would include the definitional sections of the code relating to the offense. The purpose of this rule is to ensure that the defendant has adequate notice of the charges. State v. Dungan, 149 Ariz. 357, 361, 718 P.2d 1010, 1014 (App. 1985). Error in the charging document regarding the citation of a statute does not invalidate a charge unless “the error misleads the defendant to his prejudice.” Id. at 361-62, 718 P.2d at 1014-15 (citation was to the wrong statute but no showing of prejudice); State v. Tresize, 127 Ariz. 571, 574, 623 P.2d 1, 4 (1980) (indictment failed to cite an enhancement section but “no resulting prejudice or surprise from the omission”); State v. Suarez, 137 Ariz. 368, 380, 670 P.2d 1192, 1204 (App. 1983) (the error was a “technical defect ... because it did not change either the nature of the offense charged nor did it prejudice [the defendant] in any way”); see also State v. Freeney, 223 Ariz. 110, 114, ¶ 24, 219 P.3d 1039, 1043 (2009) (“[F]or Sixth Amendment purposes, courts look beyond the indictment to determine whether defendants received actual notice of charges, and the notice requirement can be satisfied even when a charge was not included in the indictment.”).
¶35 Here, there is nothing to suggest that trial counsel lacked knowledge of the definitional section of the harmful-to-minor charges. He participated in the discussion regarding the definitions, did not object to the instructions, and referred to them in his closing argument. In the petition for postconviction relief, Macias argues that there was a technical violation regarding the indictment but does not assert that he was otherwise prejudiced. We find no error by trial counsel for failing to object to the technical error in the charging document.Doc. 1-7 at 83-84.
As noted by the Arizona Court of Appeals, the key issue is whether Petitioner suffered prejudice by the indictment's lack of citation to the definitional statute; if there was no prejudice, then trial and appellate counsel were not ineffective for failure to contest the charge as unconstitutionally vague.
The Arizona Court of Appeals did not unreasonably apply Strickland in finding that Petitioner had not been prejudiced by the omission of A.R.S. § 13-3501 (the definitional section of the harmful to minor charges) from the indictment. Petitioner does not establish that the indictment failed to sufficiently inform him of the charges, which details the factual bases for furnishing harmful items to minors and otherwise tracks the statutory elements. For example, the indictment in Count Five: Furnishing Harmful Items to Minors, stated:
That on or about the year of 2005, through the year of 2006, the defendant, GABRIEL MACIAS, with knowledge of the character of the item involved, did then and there recklessly furnish, present, provide, make available, give, lend, show, advertise or distribute to a minor, A.V. (DOC 06/21/1994), any item that is harmful to minors, to-wit: PORNOGRAPHIC MOVIES AND A SEX TOY “FAKE VAGINA”, a class four felony, all in violation of A.R.S. §§13-3506(A), 13-3506, 13701, 13-702, 13-804 and 13-801.Doc. 9-1 at 5.
Even in the absence of citation in the indictment, A.R.S. § 13-3501 nonetheless applied to the case. As the Arizona Court of Appeals noted, trial counsel “participated in the discussion regarding the definitions . . . and referred to them in his closing argument.” Doc. 1-7 at 84.
On the record in the instant case, the Arizona Court of Appeals did not unreasonably apply Strickland in finding that the technical defect of the omission of the definitional statute did not prejudice Petitioner, and that counsel was not ineffective on this issue. Indeed, the indictment was quite specific, not vague, in setting forth that the harmful items included pornographic movies and a fake vagina sex toy. See doc. 9-1 at 5; see United States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003) (“Because a defendant can be put on notice of a charge despite certain mistakes, “‘minor or technical deficiencies] in the indictment'” will not reverse a conviction if there is no prejudice.” (citation omitted)); United States v. Vroman, 975 F.2d 669, 670-71 (9th Cir. 1992) (“An indictment is constitutionally sufficient if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'” (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))).
Petitioner also argues the Arizona Court of Appeals unreasonably applied Strickland in rejecting his claim that his counsel was ineffective for failing to challenge A.R.S. § 13-3506(A) as unconstitutionally vague for criminalizing furnishing to minors material that is “harmful,” an indeterminate and subjective term. Doc. 3 at 41-42. The court held:
¶36 [A]ppellate counsel did not render ineffective assistance by choosing to press other issues on appeal instead of a void-for-vagueness claim concerning the harmful-to-minor definition given. We have previously rejected similar claims regarding harmful-to-minor charges. See State v. Evenson, 201 Ariz. 209, 218, ¶¶ 34-38, 33 F.3d 780, 789 (App. 2001) (furnishing material in vending machines); State v. Hummer, 184 Ariz. 603, 607-08, 911 P.2d 609, 613-14 (App. 1995) (rejecting a claim that statute lacked a scienter element); State v. Limpus, 128 Ariz. 371, 376, 625 P.2d 960, 965 (App. 1981). Appellate counsel was not ineffective by selecting more promising issues to pursue on the appeal. Macias failed to present a colorable claim on this basis.Doc. 1-7 at 83-84.
Petitioner asserts the court misstated the record because rather than “selecting more promising issues to pursue on the appeal,” appellate counsel “explicitly denied ‘considering] raising any challenges to the constitutionality of [A.R.S. § 13-3506(A)], including as to whether it is unconstitutionally vague.” Doc. 15 at 32 (citing doc. 1-6 at 125). However, just as counsel's affidavit did not change that counsel was not ineffective for failure to challenge the constitutionality of A.R.S. §§ 13-1410 and 1407(E), similarly, counsel's affidavit does not change the result that counsel was not ineffective for failure to present the vagueness issue. Counsel is not ineffective for failing to raise a meritless claim. Sexton, 679 F.3d at 1157 (9th Cir. 2012). To survive a vagueness challenge, a statute must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A.R.S. § 13-3501 defines “harmful to minors” as “that quality of any description or representation ... of nudity, sexual activity, sexual conduct, sexual excitement, or sadomasochistic abuse,” when to “the average adult applying contemporary state standards” it appeals to the prurient interest, portrays the description or representation in a patently offensive way, and does not have “serious literary, artistic, political, or scientific value for minors.” Contrary to Petitioner's assertion, there is no constitutional rule that states are prohibited from employing the word “harmful” to define unlawful conduct because it is inherently indeterminate. The United States Supreme Court rejected a similar vagueness challenge to the federal Child Online Protection Act's (COPA) definition of “material that is harmful to minors” because COPA “narrowed the range of content restricted by COPA in a manner analogous to Miller's definition of obscenity” and “reliance on community standards to identify ‘material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment.” Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 585 (2002). Arizona's statute similarly narrowed the definition of “harmful to minors” to comport with Miller. See Miller v. California, 413 U.S. 15, 24-26 (1973) (defining obscenity as “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”); see also State v. Evenson, 201 Ariz. 209, 219, ¶ 39 (Ariz. App. 2001) (noting that “Arizona's statutory definition of ‘harmful to minors' expressly tracks the test for obscenity approved by the United States Supreme Court” in Miller). Because the word “harmful” is sufficiently defined by statute and any void-for-vagueness challenge would not have been successful in light of Ashcroft and Miller, the Arizona Court of Appeals did not unreasonably apply Strickland when it found appellate counsel was not ineffective for declining to raise such a challenge.
The Arizona Court of Appeals addressed appellate counsel's failure to raise the vagueness issue but did not discuss trial counsel. Doc. 1-7 at 84. As to trial counsel's failure to raise the vagueness issue, the Superior Court's decision is the last reasoned statecourt decision for this Court to review. Wilson, 138 S.Ct. at 1192. The Superior Court concluded as to both trial and appellate counsel:
The court concludes as a matter of law that “furnishing harmful items to minors” is not unconstitutionally vague. Also, under
the facts of the case, no reasonable jury could conclude that magazines, videos and photographs showing explicit sexual activity were not "harmful" to minors.
Clearly, failing to make a claim of nonexistent vagueness does not fall below prevailing professional practice norms or fall below objective standards of reasonableness. Alternatively and independently, there is no reasonable probability that the result would have been different if the vagueness argument had been made in the trial court and on appeal.Doc. 1-7 at 45-46.
This Court finds that the Superior Court did not unreasonably apply Strickland in finding that trial counsel was not ineffective for failure to raise the vagueness issue, for the same reasons that appellate counsel was not ineffective for raising that issue.
Accordingly, Petitioner is not entitled to relief on Ground Five, as the Arizona courts did not unreasonably apply federal law by concluding trial and appellate counsel did not provide ineffective assistance by failing to challenge the indictment or the furnishing-harmful-items-to-minors statute, A.R.S. § 13-3506(A), as unconstitutionally vague.
B. Ground Two - the Arizona Court of Appeals Did Not Unreasonably Apply Federal Law Because the Supreme Court Has Not Directly Spoken on the Issue of Intra and Extra Jury Communications
In Ground Two, Petitioner alleges that investigation by his PCR counsel revealed that before the case was submitted to the jury for deliberations some jurors engaged in premature discussions of the case and weighed evidence admitted up to that point, discussed and decided several issues relevant to Petitioner's guilt, and exchanged opinions about Petitioner. Doc. 1 at 10-12. Petitioner alleges one juror told their investigator that halfway through trial another juror said “[Petitioner] did this” and “he needs to go.” Doc. 1 at 12. Petitioner argues these conversations and premature jury deliberations violated his Sixth and Fourteenth Amendment rights and prejudiced any chance of a fair trial.
In denying the claim in Petitioner's PCR petition that premature jury deliberation had violated his right to an impartial jury under federal and state constitutional law, the Arizona Court of Appeals noted it has “long been the established practice that jurors in a criminal case are not to discuss trial evidence amongst themselves until the conclusion of the evidence.” Doc. 1-7 at 110 (citations omitted).
However, the Arizona Court of Appeals recognized a distinction “between improper intra-jury communications and extra-jury communications,” as extra-jury communications are “far more likely to undermine due process because extraneous information provided to jurors or influences imposed on them ‘completely evade[ ] the safeguards of the judicial process.'” Doc. 1-7 at 111.
In denying this claim, the Arizona Court of Appeals concluded:
¶14 Two federal cases addressing nearly identical facts demonstrate how difficult it is to obtain a reversal when the claim is raised after a verdict is rendered. In United States v. Gianakos, during the government's presentation of evidence, one juror mouthed to another, “he's guilty.” 415 F.3d 912, 921 (8th Cir. 2005). Given the presumption that jurors impartially apply the law to the evidence and given that Gianakos offered “no allegations of external influence on the jury” rebutting the presumption, the court of appeals affirmed Gianakos' conviction. Id. at 921-22. The Eighth Circuit likewise did not disturb the conviction in United States v. Caldwell, where during the trial, one juror said, “I've heard all of this I need to hear,” and another said, “this is just a bunch of crap.” 83 F.3d 954, 956 (8th Cir. 1996). Caldwell offered no reason to doubt that the jury came to its verdict based on anything but the trial evidence. Id.
¶15 In this case, Macias did not offer evidence of any extrajury communications. Regarding intra-jury communications, Macias provided interviews from jurors J.B. (an alternate juror) and B.R. Juror J.B. claimed that several jurors deliberated prematurely about the evidence and the witnesses and started to make decisions before the close of the case. Juror B.R. stated that some jurors engaged in premature deliberations, with one juror saying that “he did this” and “he needs to go.” Neither affidavit shows that the jury came to its verdict based on anything but the trial evidence. Accordingly, Macias has failed to establish a colorable claim for relief. Gianakos, 415 F.3d at 921-22; Caldwell, 83 F.3d at 956.Doc. 1-7 at 76-77.
The Court concludes the Arizona Court of Appeals did not unreasonably apply federal law. Respondents note “[t]he Supreme Court has not entertained a case involving premature deliberations.” Doc. 9 at 12 (quoting Middlebrook v. Napel, 698 F.3d 906, 910 (6th Cir. 2012)). Without clear precedent from the Supreme Court stating the kind of intra- jury communication and premature deliberation at issue violates defendants' Sixth Amendment right to an impartial jury, this Court cannot conclude the Arizona Court of Appeals unreasonably applied federal law. See Davis v. Woodford, 384 F.3d 628, 653 (9th Cir. 2004) (denying habeas relief where intra jury discussion not necessarily proper but not as serious as extra jury influences such as tampering, private conversations).
Petitioner cites Anderson v. Calderon, 232 F.3d 1053, 1098 (9th Cir. 2000), overruled on other grounds, Bittaker v. Woodford, 331 F.3s 715 (9th Cir. 2003), to assert “[t]he Ninth Circuit . . . has recognized that premature deliberations may support a cognizable habeas claim.” Doc. 15 at 20. However, the Anderson Court denied the petitioner's claim in part because “[petitioner] does not contend that any of the jurors relied on evidence outside of the record in reaching their verdict.” Anderson, 232 F.3d at 1099. Anderson, therefore, does not support a grant of relief on this issue, as Anderson recognizes the same intra-jury and extra-jury distinction for jury communications cited by the Arizona Court of Appeals.
This Court cannot say the Arizona Court of Appeals unreasonably applied federal law. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 101 (“It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.” (citation omitted)).
C. Ground One is Procedurally Defaulted Without Excuse
In Ground One, Petitioner argues the statutes under which the jury convicted him for molestation of a child, A.R.S. §§ 13-1410 and -1407(E) (2013), unconstitutionally shifted onto him the burden of disproving he had sexual intent. Doc. 1 at 8; doc 3 at 1823.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up). “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . .” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The prisoner “must ‘fairly present' his claim in each appropriate state court,” id. at 29 (citations omitted), and “clearly state the federal basis and federal nature of the claim, along with relevant facts,” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, claims of Arizona prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007). “[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted).
If a petitioner failed to raise the claim in state court, a federal court should dismiss the petition with prejudice “if it is clear that the state court would [now] hold the claim procedurally barred” under a state procedural rule upon the petitioner returning to state court to exhaust his claims. See Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002). Further, and relevant here, a claim is procedurally defaulted in federal court if a petitioner raised it in state court, but the state court concluded the claim was defaulted on state procedural grounds, such as waiver or preclusion. Date v. Schriro, 619 F.Supp.2d 736, 765 (D. Ariz. 2008). “If the state court also addressed the merits of the underlying federal claim, the ‘alternative' ruling does not vitiate the independent state procedural bar.” Id. (citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)) A higher court later summarily denying review “affirms the lower court's application of a procedural bar.” Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
The procedural default doctrine is rooted in “the adequate and independent state ground doctrine.” Franklin, 290 F.3d at 1230 (citations omitted) (internal quotation marks omitted). Under the adequate and independent state ground doctrine, federal courts should decline to consider federal-law issues if the judgment “rests on a state-law ground that is both independent of the merits of the federal claim and has an adequate basis for the court's decision.” Id. at 1230-31 (quoting Harris v. Reed, 489 U.S. 255, 260 (1989)).
To obtain review of a procedurally defaulted claim, a petitioner must show “either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005).
In the present case, at the PCR stage, the Superior Court concluded “[furthermore, even assuming the defendant's claims are valid, the defendant waived the claims by not raising the claims in the trial court or on appeal.” Doc. 1-7 at 44. Petitioner states he then properly presented Ground One to the Arizona Court of Appeals by seeking review of the Superior Court's dismissal of his PCR petition. Doc. 1 at 9-10. But the Arizona Court of Appeals declined to address the issue, concluding Petitioner waived it by not raising it at trial or on direct appeal. Doc. 1-7 at 79. The Arizona Supreme Court summarily denied review, thereby affirming application of a procedural bar as to this ground. Doc. 1-7 at 129; Date, 619 F.Supp.2d at 765. Accordingly, Petitioner has procedurally defaulted Ground One and an independent and adequate state ground bars this Court from reviewing it. See Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (“Arizona's waiver rules are independent and adequate bases for denying relief.”).
Petitioner, however, argues Ground One is not procedurally defaulted because “cause and prejudice” exist-all but conceding Ground One is in fact procedurally defaulted and relying on an exception for this Court to hear the claim. Doc. 15 at 13. The Court finds that the exception does not apply.
Cause “must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. In the present case, in its analysis of Ground Three, this Court concluded above that Petitioner did not receive ineffective assistance when trial and appellate counsel did not raise the burden-shifting issue. As Petitioner cites only to the alleged failure of his trial and appellate counsel for his failure to raise this issue, this Court finds that the cause and prejudice standard has not been met. Though ineffective assistance of counsel may excuse a habeas claim's procedural default in some instances, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” See Murray v. Carrier, 477 U.S. 478, 486-88 (1986) (“So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.”).
IV. CONCLUSION.
The record is sufficiently developed, and the Court finds an evidentiary hearing is not necessary. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). For the reasons discussed in this Report, Petitioner is not entitled to habeas relief. Accordingly, the Court will recommend that Petitioner's petition be denied and dismissed with prejudice.
V. CERTIFICATE OF APPEALABILITY
IT IS RECOMMENDED the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENED a certificate of appealability be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and 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. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.