Opinion
No. CV-16-00745-TUC-JGZ (DTF)
11-09-2018
Patricio E. Martinez, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Patricio E. Martinez (Petitioner) presently incarcerated at the Arizona State Prison Complex, South Unit, in Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 6.) Before the Court are the Petition (Doc. 1) and Respondent's Answer to Petition for Writ of Habeas Corpus (Doc. 10). As more fully set forth below, the Magistrate Judge recommends that the District Court deny and dismiss the Petition.
BACKGROUND
On January 14, 2011, Petitioner was convicted after a jury trial in the Arizona Superior Court, Pima County of molestation of a child under 12 years of age. (Doc. 11. at p. 11.) The trial court sentenced Petitioner to the presumptive 17-year prison term. Id. at p. 15. On direct appeal, Petitioner argued that the trial court abused its discretion in instructing the jury, over Petitioner's objection, on molestation of a child as a lesser included offense of sexual conduct with a minor. (Doc. 11 at pp. 20-54.) The Arizona Court of Appeals found no error and affirmed Petitioner's conviction and sentence on August 29, 2012. Id. at pp. 3-9. Martinez filed a petition for review with the Arizona Supreme Court, which was denied on January 8, 2013. Id. at pp. 87-103, 105.
On June 24, 2013, Martinez filed a notice of post-conviction relief ("PCR") pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Id. at pp. 107-109. Petitioner's court appointed counsel timely filed a PCR petition on December 4, 2013 raising two claims of ineffective assistance of counsel ("IAC"). (Doc. 12 at pp. 3-60.) In his first claim, Petitioner argued that his trial counsel had been ineffective in not moving for a mistrial after one of the State's witnesses, a police sergeant, mentioned during his testimony that another witness had told him that she heard that Petitioner had been in prison before. Id. at 9. Petitioner's second claim was that his trial counsel had failed to present mitigating evidence at sentencing. Id. at 13. On April 4, 2014, after a full briefing, the trial court denied relief determining that Petitioner had not presented a colorable IAC claim. Id. at pp. 83-87.
Petitioner, pro se, filed a second notice of PCR on August 1, 2014. Id. at p. 89. The trial court summarily dismissed the notice because it did not set forth the grounds for relief sought or the specific exception to Rule 32's preclusion rule under which relief was sought. Id. at 92-94. Thereafter, Petitioner's court appointed PCR counsel filed a petition for review in the court of appeals. Id. at pp. 89-116. On November 17, 2014, the court of appeals denied relief. (Doc. 13 at pp. 3-5.) Counsel timely filed a petition for review with the Arizona Supreme Court. Id. at pp. 9-24. The Arizona Supreme Court denied review on December 3, 2015. Id. at p. 26. The court of appeals issued its mandate on March 2, 2016. Id. at p. 28.
On July 13, 2016, Petitioner filed a motion asking the trial court to compel his PCR attorney to send him his complete file. Id. at pp. 30-31. On July 8, 2016, the trial court ordered counsel to advise the court of what he provided Petitioner. Id. at p. 37. On October 5, 2016, Petitioner filed a motion to vacate his conviction and sentence arguing that he still had not received his file. (Doc. 13 at pp. 39-44.) Petitioner's PCR attorney responded to the trial court informing it that he did not use physical records and he had no records to transfer. Counsel also advised the trial court that the Office of Court Appointed Counsel agreed to download and transfer to Petitioner the entire trial and appellate record. Id. at pp. 46-47. On October 6, 2016, the trial court denied Petitioner's motion to vacate his conviction. Id. at p. 49.
On November 10, 2016, Petitioner filed a second motion with the trial court asserting he had still had not received his trial transcripts, was therefore unable to prepare his federal habeas petition and asked to be released. Id. at pp. 51-55. On December 1, 2016, the trial court denied Petitioner's motion noting that court appointed counsel would send Petitioner his file. Id. at p. 57. Prior to the trial court's decision, on November 21, 2016, Petitioner filed the instant Petition raising four grounds for relief. (Doc. 1.)
In Ground One, Petitioner argues that his right to the effective assistance of counsel was violated by his trial counsel's failure to move for a mistrial after the police officer testified that Petitioner had been in prison before. (Doc. 1 at p. 6.) In Ground Two, Petitioner argues that his right to the effective assistance of counsel was violated by his trial counsel's failure to present mitigating evidence at sentencing. Id. at p. 8. In Ground Three, Petitioner claims his "14th Amendment rights" were violated by the "ineffective assistance of counsel failure to turn over [his] trial transcripts and criminal files so that [he] can properly file his appeals and habeas corpus in this case." Id. at p. 11. In Ground Four, Petitioner claims his "14th Amendment" rights were violated when his "attorney intentionally withheld his trial criminal transcripts in order to derail [his] appeals in this case." Id. at p. 12.
Respondent argues against all asserted grounds for relief. (Doc. 10.) Petitioner did not file a reply. (Dkt.) ... ...
ANALYSIS
As explained below, Grounds Three and Four fail to state a cognizable claim for federal habeas relief. Even if they did state a cognizable claim, Grounds Three and Four are procedurally defaulted without excuse and are precluded from federal habeas review. Grounds One and Two are exhausted but without merit.
Non-Cognizable Claims - Grounds Three and Four
A federal court can grant habeas relief "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The rules governing habeas corpus cases require that the petition "specify the facts supporting each ground." Rule 2(c), Rules Governing 2254 Cases; see also Mayle v. Felix, 545 U.S. 644, 656 (2005) (noting that Rule 2(c) "demand[s] that habeas petitioners plead with particularity").
As mentioned above, in Grounds Three and Four Petitioner claims that his rights under the Fourteenth Amendment to the United States Constitution were violated. (Doc. 1 at pp. 11, 12.) In Ground Three, Petitioner claims "ineffective assistance of counsel failure to turn over Petitioner's trial transcripts and criminal files so that Petitioner can properly file his appeals and habeas corpus in this case." Id. at p. 11.In Ground Four, Petitioner claims that his attorney "intentionally withheld his trial criminal transcripts in order to derail [his] appeals in this case." Id. at p. 12.
Petitioner's claim in Ground Four is too vague to state a claim. Petitioner fails to specify which constitutional guarantee set forth in the Fourteenth Amendment to the United States Constitution he believes that his trial attorney violated by allegedly withholding his trial transcripts. Likewise, in Ground Three, Petitioner fails to specify which constitutional guarantee set forth in the Fourteenth Amendment to the United States Constitution that he believes his trial attorney violated. As recognized by Petitioner in Grounds One and Two, the right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution.
This Court determines that Grounds Three and Four fail to state a cognizable claim for federal habeas relief. Alternatively, as explained below, the claims alleged in Grounds Three and Four are procedurally defaulted without excuse and barred from federal habeas review.
Exhaustion/Procedural Default
Legal Principles
This Court may consider Petitioner's application for writ of habeas corpus only if he "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement "protect[s] the state courts' role in the enforcement of federal law" by affording them the opportunity to resolve federal issues before they are presented to the federal court. Rose v. Lundy, 455 U.S. 509, 518 (1982).
Exhaustion requires a prisoner to "'fairly present' his claim in each state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004). The Ninth Circuit has held that a prisoner in Arizona does not exhaust a claim for federal review unless he has presented it to the Arizona Court of Appeals. See, e.g., Castillo v. McFadden, 399 F.3d 993, 998 (9 Cir. 2004) ("To exhaust his Arizona remedies, Castillo had to give the Arizona courts a 'fair opportunity' to act on his federal due process claim before presenting it to the federal courts. ...We consider Castillo's briefing to the Arizona Court of Appeals to determine whether he fairly presented his federal due process claim to the Arizona courts.") (citations omitted); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (except in cases in which life sentences or the death penalty has been imposed, Arizona state prisoners properly exhaust their claims for the purpose of federal habeas corpus by presenting them to the Arizona Court of Appeals). Fair presentation of a claim for exhaustion purpose requires "reference to a specific federal constitutional guarantee." Gray v. Netherland, 518 U.S. 152, 162-63 (1996). "[G]eneral appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
Additionally, under the independent state grounds principle, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. Coleman, 501 U.S. at 729. The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. Id. at 731-32.
Claims may be procedurally barred from federal habeas review based either upon an express bar or an implied bar. See Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). If a state court expressly applied a procedural bar when the petitioner attempted to raise the claim in state court, and the procedural bar is both independent and adequate, review of the merits of the claim by a federal habeas court is barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.") If a state court applies a procedural bar and alternatively addresses the merits of the federal claim, the claim remains barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding."); Bennet v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined, where, as here, the state court simultaneously rejects the merits of the claim.")
An implied procedural bar may be applied to unexhausted claims where state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred."); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies. . . if it is clear that the state court would hold the claim procedurally barred.'") (quoting Harris, 489 U.S. at 263 n.9).
In Arizona, claims not previously presented to state courts on either direct appeal or collateral review are generally barred from federal review because those claims would most likely be procedurally barred. See Ariz. R. Crim. P. 32.1(d)-(h); 32.2(a) (successive petitions for post-conviction relief strictly limited to certain claims); 32.4 (time bar). Because Arizona's preclusion rule (Rule 32.2(a)) is both independent and adequate, its application to a claim by an Arizona court or its operation precluding a return to state court to exhaust a claim will procedurally bar subsequent review of the merits of that claim by a federal habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (determinations made under Arizona's procedural default rule are independent of federal law); see also Arizona v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules are strictly applied in post-conviction proceedings); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (rejecting assertion that Arizona courts' application of procedural default rules were "unpredictable and irregular"). Arizona's time bar under Rule 32.4 is an additional bar that would make a return to state court fruitless. See Beaty v. Stewart, 303 F.3d 975, 987 (9 Cir. 2002) (holding that, if an Arizona habeas petitioner "has any unexhausted claims" they are "procedurally defaulted . . . because he is now time-barred under Arizona law from going back to state court"); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (observing timeliness under Rule 32.4(a) as grounds for dismissal of a PCR petition, distinct from preclusion under Rule 32.2(a)).
Procedural Status of Petitioner's Claims
Petitioner's claims in Grounds One and Two were presented to the trial court in his PCR petition. They were also presented to the Arizona Court of Appeals in Petitioner's petition for review. Petitioner has properly exhausted these claims. Castillo, supra; Swoopes, supra.
Petitioner's claims in Grounds Three and Four were not presented to the trial court in his PCR petition nor were they presented to the court of appeals. Petitioner has failed to properly exhaust his claims in Grounds Three and Four. Id. Petitioner cannot now return to the state court to exhaust the claims alleged in Grounds Three and Four as they do not state a cognizable claim for relief under Rule 32.1 of the Arizona Rules of Criminal Procedure. See Ariz. R. Crim. P. 32.1(a)-(h) (grounds for post-conviction relief). Additionally, the time for filing a state court PCR petition has passed. See Ariz. R. Crim. P. 32.4(c). Accordingly, for Petitioner to now attempt to return to state court in an effort to exhaust the claims alleged in Grounds Three and Four would be futile. Grounds Three and Four are technically exhausted by procedurally defaulted.
The Procedural Default Cannot be Excused
Federal habeas review of a procedurally defaulted claim is precluded unless the default is excused. A procedural default may be excused if Petitioner establishes (1) "cause" and "prejudice," or (2) that a fundamental miscarriage of justice has occurred. Sawyer v. Whitley, 505 U.S. 333, 339 (1992). "Cause" is a legitimate excuse for the default and "prejudice" is actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9 Cir. 1991). (Citations omitted.) "Cause" that is sufficient to excuse a procedural default is "some objective factor external to the defense" which precludes the petitioner's ability to pursue his claim in state court. Murray, 477 U.S. at 488. "Prejudice" in the habeas context means actual, objective harm resulting from the alleged error. United States v. Frady, 456 U.S. 152, 170 (1982) (a habeas petitioner "shoulder[s] the burden of showing, not merely that the errors...created a possibility of prejudice, but that they worked to his actual and substantial disadvantage" and infected the state proceedings with errors of constitutional dimension). (Emphasis in original.) A fundamental miscarriage of justice may occur where a constitutional violation has probably resulted in the conviction of one who is actually innocent. Murray, 477 U.S. at 496 (holding that the merits of a defaulted claim could be reached "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.").
Petitioner has failed to allege and establish that cause exists to excuse the procedural default of Grounds Three and Four. In his Petition, Petitioner (incorrectly) alleges that he presented his claims in Grounds Three and Four to the Arizona Court of Appeals. (Doc. 1 at pp. 11-12.) Petitioner also (incorrectly) claims that he presented the issues raised in Grounds Three and Four to the Arizona Supreme Court. Id. Petitioner has also failed to establish that he has suffered prejudice. For example, while Petitioner claims that he "had to file his appeals from his memory," Petitioner was represented by counsel in his direct appeal and his PCR proceedings. Petitioner has made no effort to establish his actual innocence.
In sum, this Court concludes that Petitioner has failed to establish that cause and prejudice exists or that he is actually innocent. There are no grounds on which this Court can recommend that the District Court excuse the procedural default of Grounds Three and Four. Accordingly, Petitioner's claims in Grounds Three and Four are precluded from federal habeas review.
Merits Analysis - Claims I and II
This Court can only issue a writ of habeas corpus when the state court's decision 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 decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth by the Supreme Court or if the state court arrives at a result inapposite from Supreme Court precedent on materially indistinguishable facts. Early v. Packer, 537 U.S. 3, 8 (2002). Citation to federal law is not required, and the state court need not be aware of Supreme Court precedents as long as neither the reasoning nor result of the state court decision contradicts them. See Mitchell v. Esparza, 540 U.S. 12, 16 (2003), quoting Early, 537 U.S. at 8.
The "unreasonable application" clause of § 2254(d)(1) requires the state court's application of clearly established law to be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The burden is on the petitioner to rebut "the presumption of correctness" of the state court's factual determination "by clear and convincing evidence." 28 U.S.C. § 2254(c)(1); see also Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000).
The Sixth Amendment right to counsel includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective assistance of counsel, Petitioner must show both that the counsel's actions fell below an objective standard of reasonableness and that he suffered prejudice as a result. Id. at 687-88. Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Ground One
As mentioned above, Petitioner's argument in Ground One is that his trial counsel was ineffective in failing to move for a mistrial after one of the State's witnesses mentioned Petitioner's prior prison term. (Doc. 1 at p. 6.) At trial, a police sergeant who had interviewed Petitioner's aunt testified during cross-examination that she had told him that she had "heard" that Petitioner had been in prison. (Doc. 14-4 at p. 62.) Trial counsel told the court that he had advised the sergeant "not to do that." Id. The trial court asked the parties how they wanted to proceed and offered to instruct the jury to disregard the comment. Id. The prosecutor agreed that a jury instruction would be appropriate, and defense counsel stated: "well, or a mistrial. And I certainly don't want — I certainly don't want a mistrial, but . . . ." Id. After further discussion and at the defense counsel's request, the trial court instructed the jury that it was "not to consider whether the defendant has or has not ever been in prison before." Id. at 62-63. Defense counsel stated to the court that he was reserving his right to make a motion for a mistrial based upon the sergeant's statement." Id. at 73. The trial court ordered the court reporter to make available to the parties a partial transcript and allowed the defense counsel to "sleep on it." Id. at 73-74.
When trial resumed, defense counsel stated, "I believe that it's going to be necessary to specifically instruct the jury that my client was in prison, but that it was for, let's say, a weapons violation." (Doc. 14-5 at p. 4.) Counsel further confirmed that he was not asking for a mistrial. Id. The trial court offered to strike the challenged part of the sergeant's testimony from the record. (Doc. 14-6 at pp. 45-46.) Defense counsel agreed that the testimony should be stricken, and the trial court said it would do so. Id. at 46-49.
In his PCR petition, Petitioner asserted that his counsel's failure to move for a mistrial after the challenged testimony constituted ineffective assistance. (Doc. 12 at pp. 9-13.) In denying relief, the trial court stated that "the record shows that defense counsel considered his various options and made a tactical decision not to move for a mistrial but instead to request a curative instruction. . . . Defense counsel apparently felt such a limiting instruction would be beneficial to Petitioner and that there was a good chance the jury would acquit him." (Doc. 12 at p. 86.) The trial court found that Petitioner had failed to show that his counsel's actions had fallen below objective standards of reasonableness. Id. The court of appeals adopted the trial court's ruling. (Doc. 13 at pp. 4-5.)
Here, Petitioner offers an unsupported argument that his trial counsel's actions were an unreasonable trial strategy. This is the same argument that the trial court, applying Strickland, rejected. (Doc. 12 at p. 86.) See Strickland, 466 U.S. at 689 ("[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.") (Internal quotation marks omitted); Downs v. Hoyt, 232 F.3d 1031, 1038-39 (9th Cir. 2000) (noting that, because counsel's decision to not move for a mistrial was a "tactical judgment" it was not deficient performance). This Court determines that the trial court's determination that Petitioner did not prove that his trial counsel's performance was deficient was reasonable.
Assuming, arguendo, that Petitioner could establish that his trial counsel's performance was deficient (and this Court determines that Petitioner cannot so establish), he cannot prove that he was prejudiced as a result of his trial counsel's performance. In its denial of Petitioner's state court PCR petition the trial court noted that, "[a] declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will thwarted unless the jury is discharged and a new trial granted." Arizona v. Adamson, 665 P.2d 972, 984 (Ariz. 1983). This too was a reasonable determination by the trial court. The challenged statement did not require dismissal of the jury and a fresh trial. Had trial counsel moved for a mistrial, it is likely that the trial court would have denied the motion and proceeded with a curative jury instruction. In other words, there is no reasonable probability that the outcome of Petitioner's trial would have been different had his trial counsel moved for a mistrial.
This Court determines that the claim asserted in Ground One is without merit.
Ground Two II
In Ground Two, Petitioner argues that his right to the effective assistance of counsel was violated by trial counsel's failure to present any mitigating evidence at his sentencing hearing. (Doc. 1 at p. 8.) Prior to Petitioner's sentencing the probation officer prepared a presentence report without input from Petitioner because Petitioner declined to participate in an interview or provide a statement. (Doc. 12 at p. 84.) At sentencing, Petitioner maintained his innocence stating, "[F]or me to sit here and say give me a lesser sentence or to make the Court mad at me, like aggravate my sentence, I can't do either because it's wrong." (Doc. 14-10 at p. 5.) Defense counsel did not present any additional evidence and asked the court to impose the presumptive sentence. Id. at 4. The trial court imposed the presumptive prison term of 17-years' imprisonment. Id. at 6.
In this state PCR petition, Petitioner argued that his trial counsel's failure to present any mitigating evidence constituted ineffective assistance because if the trial court had been aware of the "myriad of mitigating factors applicable to [Petitioner] it is probable that a minimum or lesser term would have been imposed." (Doc. 12 at pp. 13-14.) The alleged mitigating factors consisted of Petitioner's physical and verbal abuse by his parents; the fact that Petitioner's family lived in violent gang and drug infested neighborhoods; Petitioner's own involvement in a gang; his alcohol and narcotic abuse as a teenager; his depression, paranoia, and anxiety; the psychological impact of his prior incarceration; his impaired ability to appreciate the wrongfulness of his actions; his low risk of recidivism and potential for rehabilitation; and his family support. Id. at 14-26.
The trial court recognized that Petitioner's trial counsel had access to presentence reports that were prepared in Petitioner's other criminal matters. Id. at p. 84. However, the content of these reports contradicted each other as well as the narrative provided in Petitioner's PCR petition. For example, in one pre-sentence report Petitioner represented that he drank alcohol "five to eight times a year on special occasions," starting at age 18 and denied drug experimentation or gang association. Petitioner also described a "lower middle-class socioeconomic environment with open love and good communication" where "[d]iscplined consisted of grounding, restrictions, and occasional spankings." However, another pre-sentence report contained no mitigating information. An additional pre-sentence report, documented Petitioner's admitted experimentation with cocaine along with successful completion of Alcoholics Anonymous and Cocaine Anonymous and concluded that Petitioner had shown progress by adapting to life outside prison. This presentence report recommended the presumptive sentence. Id. at pp. 84, 86-87.
The trial court determined that "trial counsel could not have reasonably been expected to know about [Petitioner's] background as he now claims it to be. The previous pre-sentence reports reflect that opposite of what [Petitioner] is now claiming." Id. at 86-87. The trial court determined that because Petitioner did not participate in a pre-sentence interview, the only evidence of mitigating factors that his trial counsel had was the three prior pre-sentence reports and Petitioner's assertions. Id. at p. 87. In light of that, the trial court determined that trial counsel's actions were not unreasonable. Id. The court of appeals adopted the trial court's ruling. (Doc. 13 at pp. 4-5.)
This Court determines that the trial court's decision was not an unreasonable application of Strickland. Assuming, arguendo, that Petitioner's counsel was ineffective in not presenting mitigating evidence (and this Court does not determine such), Petitioner has failed to show that he was prejudiced by counsel's performance. Petitioner failed to provide any alleged mitigating evidence in his state court PCR petition. Thus, there is no evidence of what any further investigation would have uncovered. Finally, Petitioner's own statement to the trial court that he was not asking for a lesser sentence does suggest, to a reasonable probability, that a lesser sentence would have been awarded to Petitioner.
This Court determines that the claim alleged in Ground Two is without merit.
RECOMMENDATION
Petitioner's claims in Grounds One and Two are without merit. Petitioner's claims in Grounds Three and Four are technically exhausted but procedurally defaulted without excuse. The Court recommends the District Court dismiss Grounds Three and Four with prejudice and deny Petitioner's request for federal habeas relief on Grounds One and Two.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to rule (4)(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rule 72(b), 6(a) and 6(c) of the Federal Rules of Civil Procedure. Thereafter, the parties have 14 days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number 16-cv-00745-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge 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 (9 Cir. 2003) (en banc).
Dated this 9th day of November, 2018.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge