Opinion
CV-19-8311-PCT-JAT (JFM)
05-14-2021
Phillip Daniel Sims, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In denying Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
During a parole compliance check at Sims's residence, Sims admitted that there were inappropriate items on his computer. Sims's parole officer viewed the items and determined that Sims may have violated the conditions of his parole and had possibly engaged in criminal activity. Police investigators discovered 10 images of sexually exploited male minors stored on a USB drive Sims owned, and Sims admitted that he had downloaded the images.(Exh. O, Mem. Dec. 5/1/18 at ¶ 2.) (Exhibits herein are referenced as follows: to the Answer (Doc. 19), as “Exh. ___”; to the Petition (Doc. 1) as “Exh. P-__”; and to the Reply (Doc. 21) as Exh. R-__.”)
B. PROCEEDINGS AT TRIAL
Petitioner was charged with 10 counts of sexual exploitation of a minor. (Exh. A, Indictment. Petitioner proceeded to a jury trial with counsel.
At trial, Appellant admitted to knowing possession of the subject images. Appellant's entire defense, bolstered by cross-examination of Mr. Schantz and Dr. Coffman demonstrating their lack of expertise in detecting false images, was that the state failed to prove beyond a reasonable doubt that the minors and body parts depicted in the ten images were of real human beings.
(Exh. M, Open. Brief at 9-10.) Petitioner was convicted as charged, and the jury found the charges to be “dangerous crimes against children, ” with the exception of three counts for which they found that the age of the minor depicted was not proved to be under 15. (Exh. J, M.E. 12/8/16.) The court imposed seven consecutive life sentences on the “dangerous” crimes, and three concurrent terms of 15.75 years on the other three charges.
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed through counsel a direct appeal arguing the trial court “erred by (1) refusing to give the jury instructions he requested and (2) not sua sponte clarifying terms in the sexual exploitation statute.” (Exh. O, Mem. Dec. 5/1/18 at ¶ 4; Exh. K, Sentence 2/7/17.) The Arizona Court of Appeals found no reversible error and affirmed Petitioner's convictions and sentences. (Exh. O, Mem. Dec. 5/1/18 at ¶ 9.) Petitioner did not seek further review. (Exh. P, Mandate 6/15/18.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
Petitioner filed a Notice of Post-Conviction Relief (Exh. Q). Counsel filed a notice of inability to find issues for review (Exh. R). Petitioner filed a pro se PCR Petition (Exh. S) arguing: (1) First Amendment overbreadth based on “appearance” of age; (2) Petitioner's statements to police were involuntary due to mental illness, i.e. pedophilia; (3) First Amendment overbreadth based on “common sense” standard; (4) cruel and unusual punishment; (5) ineffectiveness of trial counsel in failing to retain expert and ineffectiveness of appellate counsel regarding failure to communicate; and (6) error in jury instructions.
The PCR court found “Points” 1, 3, and 4 precluded because they “should have been raised, or were raised on appeal.” Point 2 was construed as a claim of delay in charging and was denied as not cognizable on PCR review. Point 5 was denied on the merits on the basis that Petitioner had not shown prejudice from the lack of an expert, or lack of communication. Point 6 was not addressed. (Exh. T, Order 1/10/19.)
Petitioner filed a Petition for Review (Exh. U) raising: (1) his First Amendment claims in Point 1 and (2) in Point 3; (3) the trial ineffectiveness claim in Point 5; (4) the appellate ineffectiveness claim in Point 5; (5) a new claim of ineffective assistance of PCR counsel; and (6) the cruel and unusual punishment claim in Point 4. Petitioner did not repeat his claims in Points 2 and 6. The Arizona Court of Appeals granted review but summarily denied relief on the basis of a failure to show an abuse of discretion by the PCR court. (Exh. W, Mem. Dec. 9/19/19.) Petitioner did not seek further review, and the appellate court's mandate issued October 21, 2019. (Exh. Z, COA Docket at 2; Petition, Doc. 1 at 5.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 23, 2019 (Doc. 1). Petitioner's Petition asserts the following four grounds for relief:
(1) “The State of Arizona violated [Petitioner's] right to freedom of speech under the United States Constitution's [First] Amendment” when it “failed to prove beyond a reasonable doubt that the images used to charge the [Petitioner] were real persons and not fictitious ones”;
(2) “The State of Arizona violated [Petitioner's] right to due process …under the Fifth Amendment” when it “failed to thoroughly investigate the images [Petitioner] was charged with possessing, shifting the burden of proof”;
(3) “The State of Arizona violated [Petitioner's] right to obtain witnesses in his favor or confront his accusers under the Sixth Amendment”;
(4) “The State of Arizona violated [Petitioner's] right to not to have a cruel and unusual punishment imposed upon him under the…Eighth Amendment”; and
(5) “The State of Arizona violated [Petitioner's] right to effective counsel under the . . . Fourteenth Amendment.”(Service Order 2/26/20, Doc. 7 at 2.)
The Service Order quoted Ground 1 as referencing the “Fifth Amendment.” The undersigned deems this a typographical error. The Petition plainly references the “First Amendment.” (Doc. 1 at 5 (“6 of 16”).) However, in his Memorandum, Petitioner expounded, asserting violations of “Defendant's United States Constitution's First, Fifth and Fourteenth Amendment rights to free speech and due process by convicting him based on evidence that the State failed to prove involved living persons and not fictitious ones.” (Exh. P-3, Memorandum at “3” (Doc. 1 at 27.)
Response - On April 6, 2020 Respondents filed their Answer (Doc. 19). Respondents argue Petitioner's claims are either procedurally defaulted and/or are without merit under the deferential standard in 28 U.S.C. § 2254(d), and that Petitioner fails to show cause and prejudice to excuse his defaults.
Reply - Because Respondents relied in part on exhaustion defenses, the Court directed:
IT IS FURTHER ORDERED that any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts shall be supported by specific references to the location of the presentation of the claim, i.e. by exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17 - 2/23”).(Order 4/7/20, Doc. 20.)
On April 30, 2020 Petitioner filed a Reply (Doc. 21). Petitioner argues the procedural defenses (providing citations to the record purported to result in proper exhaustion) and merits of his claims.
III. APPLICATION OF LAW TO FACTS
A. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR
Respondents argue that most of Petitioner's claims are either procedurally defaulted or were procedurally barred on an independent and adequate state ground, and thus are barred from federal habeas review.
In Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010), a panel of the Ninth Circuit denominated an expected future application of a procedural bar as an “implied procedural bar, ” and an actually applied procedural bar as “explicit.” Respondents use the terms “technical exhaustion” and “express procedural bar.” Because habeas courts are sometimes called upon to imply an actual application of a procedural bar from a summary state court decision, see Hunter v. Aispuro, 982 F.2d 344 (9th Cir. 1992) and Wilson v. Sellers, 138 S.Ct. 1188 (2018), and because a procedural default involves a forecast of a state court's future decision, rather an implication about a past decision, the undersigned maintains the separate nomenclature of procedural default and procedural bar. The principles, however, are the same.
1. Exhaustion Requirement
Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
a. Exhaustion by Fair Presentation
Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
Proper Forum - “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Under the 1989 amendments to the governing state statutes, even cases carrying a life sentence are exhausted once ruled on by the Arizona Court of Appeals. Crowell v. Knowles, 483 F. Supp. 2d 925, 933 (D. Ariz. 2007).
Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987).
Factual Basis - A petitioner must have fairly presented the operative facts of his federal claim to the state courts as part of the same claim. A petitioner may not broaden the scope of a constitutional claim in the federal courts by asserting additional operative facts that have not yet been fairly presented to the state courts. Expanded claims not presented in the highest state court are not considered in a federal habeas petition. Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982). Thus, while new factual allegations do not ordinarily render a claim unexhausted, a petitioner may not "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986).
Legal Basis - Failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite “book and verse on the federal constitution, ” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law, ” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state law is not sufficient.
For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).
Proper Mode - "[O]rdinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). The Arizona habeas petitioner "must have presented his federal, constitutional issue before the Arizona Court of Appeals within the four corners of his appellate briefing." Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). But see Insyxiengmay v. Morgan, 403 F.3d 657, 668-669 (9th Cir. 2005) (arguments set out in appendix attached to petition and incorporated by reference were fairly presented).
b. Exhaustion by Actual Consideration
Although fair presentation is the normal mode of establishing exhaustion of state remedies, it is not the only method. Rather, a petitioner's state remedies are exhausted where the state courts have reached and passed on the merits of a federal claim, regardless whether the petitioner had fairly presented the claim to the state court. “It is reasonable to infer an exception [to the fair presentation requirement] where the State has actually passed upon the claim.” Castille v. Peoples, 489 U.S. 346, 351 (1989). See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002) (“exhaustion does not require repeated assertions if a federal claim is actually considered at least once on the merits by the highest state court”); Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984) ("[t]here is no better evidence of exhaustion than a state court's actual consideration of the relevant constitutional issue"); and Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990) (state court's sua sponte consideration of an issue satisfies exhaustion).
On the other hand, actual consideration of the claim is not required. “All exhaustion requires is that the state courts have the opportunity to remedy an error, not that they actually took advantage of the opportunity.” Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009).
2. Procedural Default
Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents rely upon Arizona's waiver bar, set out in Ariz. R. Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer, Doc. 19 at 4-16.)
Remedies by Direct Appeal - Under Ariz.R.Crim.P. 31.3, the time for filing a direct appeal expires twenty days after entry of the judgment and sentence. Moreover, no provision is made for a successive direct appeal. Accordingly, direct appeal is no longer available for review of Petitioner's unexhausted claims.
Remedies by Post-Conviction Relief - Under Arizona's waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.
Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel).
For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at “the nature of the right allegedly affected by counsel's ineffective performance. Id.
Here, none of Petitioner's claims are of the sort requiring a personal waiver, and Petitioner's claims of ineffective assistance similarly have at their core the kinds of claims not within the types identified as requiring a personal waiver.
Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. Ariz.R.Crim.P. 32.4 requires that petitions for post-conviction relief (other than those which are “of-right”) be filed “within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition and noting that first petition of pleading defendant deemed direct appeal for purposes of the rule). That time has long since passed.
Exceptions - Rules 32.2 and 32.4(a) do not bar offending claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. Nor does it appear that such exceptions would apply. The rule defines the excepted claims as follows:
d. The person is being held in custody after the sentence imposed has expired;
e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:
(1) The newly discovered material facts were discovered after the trial.
(2) The defendant exercised due diligence in securing the newly discovered material facts.
(3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.
f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or
g. There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or
h. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.
Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Petitioner makes no claim based on “newly discovered evidence” and paragraph (e) has no application. Paragraph (f) has no application because petitioner filed a timely notice of appeal and notice of post-conviction relief. Paragraph (g) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no application to the procedural claims Petitioner asserts in this proceeding.
Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court.
Thus, Petitioner's claims that were not fairly presented are all now procedurally defaulted.
3. Procedural Bar on Independent and Adequate State Grounds
Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011).
In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 584-585.
Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The federal courts have routinely held that it is. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).
Timeliness Bar - Similarly, Petitioner fails to proffer anything to suggest that Rule 32.4 is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The Ninth Circuit has held that it is. Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir. 2006) (unpublished decision).
4. Application to Petitioner's Claims
a. Ground 1 - Free Speech/Insufficient Evidence
In Ground One of his Petition, Petitioner argues that “[t]he State of Arizona violated [Petitioner's] right to freedom of speech under the United States Constitution's First Amendment” when it “failed to prove beyond a reasonable doubt that the images used to charge the [Petitioner] were real persons and not fictitious ones.” (Petition, Doc. 1 at 5.) The undersigned construes this as asserting two distinct claims: (A) a First Amendment vagueness and overbreadth claim as a result of reliance on the “appearance” of the age of the depicted persons; and (B) a 5th and 14th Amendments Due Process claim based upon insufficiency of the evidence that the images were real, pornographic images of minors, and not digitally manipulated photos of something else. The undersigned denominates these as Grounds 1A and 1B, respectively. Petitioner asserts he presented Ground 1 to the Arizona Court of Appeals on direct appeal in his PCR proceeding. (Petition, Doc. 1 at 6 (“7”).)
Respondents similarly construe this as asserting “a First-Amendment violation for the State's alleged failure to prove the depicted victims were real children, ” (Answer, Doc. 19 at 17) and an insufficiency of the evidence claim (id. at 18). A, perhaps more liberal, construction of the Petition as an attack on the jury instructions is foreclosed by Petitioner's Reply, which makes clear his claim in Ground 1 was not related to a jury instruction claim. (Reply, Doc. 21 at 3 (the State erroneously tied the Petitioner's sufficiency of the evidence claim to the Petitioner's jury instruction issue in the Petitioner's direct appeal”).)
Respondents argue the claims in Ground 1A and 1B were not presented on direct appeal and are thus procedurally defaulted. (Answer, Doc, 19 at 18.)
Petitioner replies that he presented his insufficiency claim in Ground 1B in his PCR Petition, citing Exh. S at 1-4, but the PCR court adopted the State's misconstruction in the PCR response that treated this as part of his claim on the jury instructions and ruled the claim should have been raised on direct appeal. He argues he also raised Ground 1B in his PCR petition for review, citing Exh. U at 3-6, and argues it was denied by the Arizona Court of Appeals on the merits. Finally, he argues that any failure to raise it on direct appeal resulted from ineffective assistance of appellate counsel. (Reply, Doc. 21 at 3-4.)
Direct Appeal - Petitioner argued much of the factual and legal underpinnings of both Grounds 1A and 1B on direct appeal:
In order to pass constitutional first amendment scrutiny, a statutory scheme may not criminalize possession of child pornography unless the images are of actual real human minors. State v. Hazlett, 205 Ariz. 523 (App. 2015); Ashcroft v. Free Speech Coalition, supra. Thus, in order to secure a conviction, the state must prove, beyond a reasonable doubt, any images depict real humans.(Exh. M, Open. Brief at 10 (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2003)).) But the substance of Petitioner's argument on direct appeal was neither an attack on the constitutionality of the statute nor the evidence at trial, but an attack on the sufficiency of the jury instructions: “The trial court abused its discretion in denying Appellant's Proposed Jury Instructions 27 and 28.” (Exh. M, Open. Brief at 9.)
In rejecting Appellant's theory of defense instructions 27 and 28 the court left the jury with confusing information that the presented images need not necessarily be of actual human beings and/or actual images of genitals. The court's mistakes and omissions in instructing the jury, unfortunately, as a whole, failed to adequately inform the jury of the correct law. Consequently, Appellant's sole defense was gutted by the court's denial of Appellant's Proposed Instructions 27 and 28 in the final jury packet.(Id. at 12.)
In Ashcroft, the Supreme Court held that “where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.” 535 U.S. at 251. Virtual images (i.e. those not produced using actual children) are protected, even if they depict pornographic images of what appear to be children.
When deciding questions of fair presentation, the habeas court applies a “more lenient standard” to pro se state filings. Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). The Ninth Circuit has observed:
All petitions must be read in context and understood based on the particular words used, and we therefore cannot lay down a simple, bright-line rule. But we can at least say that, for purposes of exhaustion, counseled petitions in state court may, and sometimes should, be read differently from pro se petitionsPeterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003). This recognizes that lawyers, trained in the exactitudes of legal writing, must generally be understood to have meant precisely what they wrote, no more or less. “When a document has been written by counsel, a court should be able to attach ordinary legal significance to the words used in that document.” Id. Here, Petitioner's counseled brief on appeal asked the state court to evaluate only the jury instructions given, not the propriety of the statute or the sufficiency of the evidence. Thus, the claims in Grounds 1A and 1B were not fairly presented on direct appeal.
Moreover, the Arizona Court of Appeals' decision did not address either of these specific claims. Rather its decision was limited to concluding that the jury instructions were adequate. (Exh. O, Mem. Dec. 5/1/18 at ¶¶ 7-8.) At most, the Arizona Court of Appeals referenced the holding of Ashcroft v. Free Speech Coalition in finding no instructional error. (Id. at ¶ 6.)
PCR Proceedings - Of course, Petitioner does not argue fair presentation on direct appeal, but in his PCR proceeding. Indeed, in “Point 1” of his PCR Petition Petitioner argued overbreadth from reliance on “appearance” on the basis of Ashcroft v. Free Speech Coalition, and the state relied on opinions that the images depicted what “appear to be” minors of a certain age. (Exh. S, Attach. A at 1-2.) Similarly, before the Arizona Court of Appeals, in Point 2 of his Petition for Review, he cited Ashcroft and argued overbreadth, the factual and legal substance of Ground 1A. He did not however, assert a claim of insufficient evidence on constitutional grounds. At most, he argued the jury was confused about the standard, and asserted his “Fifth Amendment Right to Due Process under the law was violated by the Trial Court's denial of” his motion to dismiss on the basis of the unconstitutionally vague and overbroad statute. (Exh. U at 6-7.) This was not sufficient to assert a claim of insufficient evidence at trial. “Mere general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, do not establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (quotations and citations omitted).
Thus, Ground 1A was presented to the Arizona Court of Appeals in the PCR proceeding, but Ground 1B was not.
Here, the Arizona Court of Appeals offered no reasoning for its conclusion that the PCR court's rejection of Ground 1A was not an abuse of discretion. Thus, the last reasoned decision on the merits of Petitioner's federal claim was that of the PCR court. It is that decision which this Court looks “through” to as providing the basis for disposition of Petitioner's claim. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
The PCR Court rejected the claims as precluded under Ariz. R. Crim. Proc. 32.2, because they “should have been raised, or were raised on appeal, ” and thus concluded they were “precluded under Rule 32.2.” (Exh. T, Order 1/10/19 at 1.) Rule 32.2 includes both the waiver provision in Rule 32.2(a)(3) (discussed hereinabove regarding procedural default) and a provision in Rule 32.2(a)(2) precluding PCR review where the claims were “finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding.” (Both are described by Rule 32.2 as causing review to be “precluded” and are at times both referenced by that term, or at times differentiated as “waiver” and “preclusion”.) Of course, if the PCR court found the claim had been decided on direct appeal (or if it actually had been), then this Court would have to deem Petitioner's state remedies on it properly exhausted.
But the PCR court did not make clear in its ruling whether the claim had been or merely should have been raised. Where a state court decision appears to rely on more than one state law grounds, but affords no basis for choosing between a state law ground that would bar federal review, and one that would not (i.e. because it is not "independent"), that decision cannot bar federal review. Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003); Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.1996).
Arizona's courts have for decades continued to regularly use the same ambiguous language in making such rulings despite being on notice of the potential result since at least the decision in Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.1996). Unfortunately, the minutes the state courts save by not being specific costs habeas litigants and courts hours in unravelling, and risks de novo review of claims which would otherwise be immune from federal habeas review.
A claim cannot be both previously litigated and procedurally
defaulted; either it was raised in a prior proceeding or it was not. These cases do not allow for the possibility that the state court relied on both grounds for dismissing the relevant claims; only one ground could apply to each claim. The question is not whether the state relied primarily on a particular ground, but on which mutually exclusive ground the state court relied. When either ground is a possibility, the choice between them is wholly arbitrary. It is not our role to make such a choice.Koerner, 328 F.3d at 1053.
However, the habeas court need not resolve the issue by reference to the order alone. Rather, “other information can be consulted to determine if the state court clearly relied upon Rule 32.2(a)(3).” Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014). Relevant considerations include: (1) the state's arguments before the state courts making the ambiguous determination, id. at 1016 (citing Coleman v. Thompson, 501 U.S. 722, 740 (1991)); (2) whether the claim actually was raised in prior proceedings, id. at 1016 (citing Poland v. Stewart, 169 F.3d 573, 578-579 (9th Cir.1999); and (3) the petitioner's arguments before the state courts, id. at 1017.
State's Arguments - In Murray, the Ninth Circuit discussed the ability to consider the state's arguments in the state proceedings, and observed: “However, we have said that where underlying arguments present mixed arguments of preclusion and waiver there is no ‘clear[ ] and express [ ]' state bar to federal review.” 745 F.3d at 1016.
Here, the State argued in response to the PCR Petition that Petitioner's non-ineffectiveness claims “are based on an argument that has been adjudicated on the merits in an appeal.” (Exhibit R-1, PCR Resp. at 1 (emphasis added).) While at first blush this might seem an assertion that the claims in the PCR had been adjudicated, a careful reading shows the State was referencing not those PCR claims but the underlying legal argument, i.e. “the State's alleged failure to establish that the images possessed by Defendant depicted real human children.” (Id.) Thus, the State did not argue the claims were precluded by prior decision, only that they were “precluded by Rule 32 of the Arizona Rules of Criminal Procedure.” (Id. at 2.) In its Response to the PCR Petition for Review, the state again simply argued the claims “were precluded under Rule 32 of the Arizona Rules of Criminal Procedure.” (Exh. V at 1.)
This leans to a conclusion that the PCR court's ruling was a finding of waiver, rather than preclusion by prior decision.
Petitioner's Arguments - In his PCR Reply, Petitioner explicitly argued his claims were not previously adjudicated:
The petitioner believes that the State is in error in its Response. The petitioner's claims have not all been adjudicated on the merits in an appeal.(Exh. R-2, PCR Reply at 1.) This leans to a conclusion that the actual ruling was one of waiver.
Actual Record - Moreover, the undersigned has independently concluded hereinabove that the claim in Ground 1A was in fact never raised or resolved on direct appeal. This leans to a the ruling being one of waiver.
Conclusion - In light of all the circumstances, the undersigned concludes that despite its ambiguous language the PCR court applied the state's waiver bar, rather than the preclusion bar. Thus, the claim in Ground 1A was procedurally barred by the state courts based on the state's waiver bar, and Ground 1B was not fairly presented and is now procedurally defaulted.
b. Ground 2 - Shifting Burden of Proof
In Ground 2, Petitioner argues the state violated his due process rights under the Fifth Amendment when it shifted the burden of proof to him on whether the images were of actual children, or only virtual depictions of children. Respondents argue this claim was not properly exhausted on direct appeal or in the PCR proceeding.
Petitioner argues this claim was raised in his PCR Petition (citing Exhibit S, Attachment A, at 2 and 4), and was raised again in his PCR Petition for Review (citing Exhibit U at 5-6).
Indeed, in his PCR Petition, in the course of arguing his claim under Ashcroft, Petitioner argued:
The State, in its acceptance of “appears to be” as definitive proof that the characters in the ten images presented at trial were truly minors,
erred. Also, in doing this, the State shifted the burden of proof to the Appellant.(Exh. S, PCR Pet., Attach. A at 2 (emphasis added).) Petitioner further argued:
Justice Kennedy, in his opinion in Ashcroft v. Free Speech Coalition said, in point [23]… “Experts, we are told, may have difficulty in saying whether the pictures were made using real children or by using computer imaging…” In point [26], he says… “The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful… …where the defendant is not the producer of the work, he may have no way of establishing the identity, or even the existence of the actors… …If the evidentiary issue is a serious problem for the Government, as it asserts, it will be at least as difficult for the innocent possessor.”(Id. at 3-4 (emphasis added).) The undersigned assumes arguendo (despite the absence of any explicit reference to a constitutionally improper shifting of the burden of proof) that this was sufficient to fairly present such a claim. Assuming this claim were fairly presented to the PCR court, that court rejected this claim as waived, as with Ground 1A.
The cited portion of the opinion addressed the government's argument that this was merely a proper shifting of burden on an affirmative defense, but left undecided whether this was an impermissible shifting by observing that the statute in question provided no exception for child pornography even where a defendant met the burden of showing the images were compute generated rather than pictures of actual children. Ashcroft, 535 U.S. at 256.
However, even if not fairly presented in the PCR court, Petitioner never presented this argument to the Arizona Court of Appeals. The referenced portion of his PCR Petition for Review argues the related First Amendment claim but makes no reference to an improper shifting of the burden of proof. (Exh. U, PCR Pet. Rev. at 5-6.) Thus, this claim was never fairly presented to the Arizona Court of Appeals, and would now be procedurally defaulted.
c. Ground 3 - Denial of Witnesses
In Ground 3 Petitioner argues his right to obtain witnesses in his favor or confront his accusers under the Sixth Amendment was denied when the prosecution opposed the release of the images to the defense to have them examined. Petitioner concedes the claim “was not clearly articulated” in his PCR Petition or Petition for Review. (Petition, Doc. 1 at 9; Exh. P-3, Memorandum at 6-7.) Respondents argue this claim was procedurally defaulted or procedurally barred. In his Reply, Petitioner argues this claim was fairly presented in Point 5 of his PCR Petition (citing Exh. S at 6-7), and in Point 3 his PCR Petition for Review (citing Exh. U at 9). (Reply, Doc. 21 at 6.)
The PCR Petition did not include such a claim. Rather, the cited Point 5 argued only that counsel was ineffective for not pursuing an expert to analyze the images. (Exh. S, PCR Pet. at 6-7.) That is a far different claim, factually and legally, from a claim that the state denied Petitioner his witness and confrontation rights. Similarly, the cited portions of the PCR Petition for Review included Petitioner's claim of ineffective assistance of counsel for failure to retain an expert, not based on the state precluding him from obtaining a witness.
This claim was not fairly presented to the Arizona Court of Appeals on direct appeal or in the PCR proceeding, and it is now procedurally defaulted.
d. Ground 4 - Cruel and Unusual Punishment
In Ground 4, Petitioner argues his Eighth Amendment rights against cruel and unusual punishment were violated when sentenced to seven consecutive life sentences, and a concurrent 15.75 year sentence without any evidence of a victim (because there was no evidence the images depicted actual children). (Petition, Doc. 1 at 10 (“11”); Exh. P-3, Memorandum at 7.) Respondents similarly argue this claim was procedurally defaulted or procedurally barred. Petitioner replies that he argued the claim in Point 4 of his PCR Petition (citing Exh. S) and in Point 6 of his PCR Petition for Review (citing Exh. U at 10)
In his PCR Petition, Petitioner argued in Point 4 that his seven life sentences constituted “ ‘cruel and unusual punishment' under the Constitution (See Exhibit #3).” (Exh. S, PCR Pet. at 6.) The referenced Exhibit 3, trial counsel's Motion to Find Sentencing Structure Unconstitutional as Applied, asserted “cruel and unusual punishment pursuant to the 8th and 14th Amendments of the U.S. Constitution” and related state authorities. (Exh. S., PCR Pet., Exh. #3 at 1.) That Motion argued, inter alia: “Seven consecutive life sentences for offenses that fail to identify an actual victim should shock the conscience.” (Id. at 3.) As with the other non-ineffective assistance grounds, the PCR court ruled this claim waived on appeal, and thus it is procedurally barred.
Even if not deemed procedurally barred, Petitioner has procedurally defaulted on this claim by failing to raise it to the Arizona Court of Appeals. In his PCR Petition for Review, Petitioner argued that “because the State used evidence that could not be proved beyond a reasonable doubt to be of real persons, that he received sentences that were cruel and unusual.” (Exh. U, PCR Pet. Rev. at 10.) However, Petitioner made no reference to the federal Constitution provision other than the First Amendment, or any federal (or other) authorities. “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law, ” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). Petitioner did none of these, and thus failed to fairly present this as a federal claim to the Arizona Court of Appeals.
e. Ground 5 - Ineffective Assistance
In Ground 5, Petitioner argues that he was denied effective assistance of counsel when trial counsel: (A) failed to retain an expert to investigate whether the child pornography images depicted actual children; (B) failed to call any witnesses to testify on identifying fake images; (C) failed to conduct an adequate investigation; (D) shared his work product in responding to a motion to preclude; (E) failed to investigate the images; (F) conspired with the prosecution to eliminate evidence of burden shifting; and (G) failed to object to the burden shifting and resulting constitutional violations. He also argues he was denied effective assistance of counsel when (H) appellate counsel and (I) PCR counsel failed to adequately communicate. (Petition, Doc. 1 at 12a-12b, and Exh. P3, Memo. at 7-8.)
Respondents explicitly identify only Grounds 5A, 5B, and 5C, which are set out in the body of the form Petition. (Doc. 1 at 12a-12b.) Respondents argue Ground 5A (investigator) and 5B (witnesses on identifying fakes) were rejected on the merits in Petitioner's PCR proceedings. (Answer, Doc. 19 at 22.) However, they argue that any other claims in Ground 5 were not fairly presented in the PCR proceeding and are now procedurally defaulted. (Id. at 19.)
Petitioner replies that his claim in Ground 5C was raised in his PCR Petition (citing Exh. S, Attach. A at 7 (Point 5)) and his Petition for Review (Exh. U at 7-9 (Point 3).)
In his PCR Petition, Petitioner argued his claims in Ground 5A (expert witness on the images) (“expert who specializes in computers and computer images…asked his attorney to engage this expert but Mr. Doughty did not follow through”), and 5B (witnesses on fake images) (“found no witnesses at all to testify about computer imaging”). (See Exh. S, PCR Pet. at 6-7.) He also asserted claims that appellate counsel failed to communicate with him. Petitioner did not raise his claims in Ground 5C through 5I.
In is PCR Petition for Review, Petitioner again raised his claims in Grounds 5A (expert witness on images) (“Doughty decided not to ask the Trial Court for the money to pay for these experts”), 5B (witnesses on fake images) (“failed to find anyone to testify as to how images could be created”), and a claim that counsel failed to utilize a YouTube video on manipulating computer images. (Exh. U, PCR Pet. Rev. at 7-9.)
Thus, Petitioner did not fairly present the facts of his claims in Grounds 5C, 5D, 5E, 5F, 5G, 5H, or 5I. Thus, at least Grounds 5C, 5D, 5E, 5F, 5G, and 5H are now procedurally defaulted.
However, Petitioner had no opportunity to present his claims of ineffective assistance of PCR counsel raised in Ground 5I. The claim was not ripe at the time of his PCR petition, and he could only seek review of the decision of the PCR court in his Petition for Review in that proceeding. See Ariz. R. Crim. Proc. 32.16(a)(1) (‘review of the decision”) and (c)(2)(B) (“issues the trial court decided”). While claims of ineffective assistance of PCR counsel can be raised in Arizona in a successive PCR petition, that right is limited to “of-right” petitions (e.g. those of pleading or capital defendants). See State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (Ct. App. 1995). Accordingly, there were no available state remedies on this claim, and thus his available remedies are exhausted.
f. Summary Re Exhaustion
Based upon the foregoing, the undersigned concludes that Petitioner properly exhausted his state remedies as to: Ground 5A (investigator); and Ground 5B (witnesses on identifying fakes). Petitioner had no available remedies on his claim in Ground 5I (ineffectiveness of PCR counsel). Accordingly, these claims must be addressed on the merits.
The undersigned also concludes that Petitioner was procedurally barred on an independent and adequate state ground on his claims in: (1) Ground 1A (First Amendment overbreadth); (2) Ground 2 (shifting burden of proof); (3) Ground 4 (cruel and unusual punishment);
The undersigned further concludes that Petitioner has procedurally defaulted on: (1) Ground 1B (insufficient evidence re actual children); (2) Ground 3 (denial of witnesses); (4) Grounds 5C (investigation), 5D (work product), 5E (investigate images), 5F (conspiring), 5G (objection), and 5H (appellate counsel).
5. Cause and Prejudice
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court 'has not given the term ‘cause' precise content.'” Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:
... a showing that the factual or legal basis for a claim was not
reasonably available to counsel, or that "some interference by officials", made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
a. Ineffective Assistance of Appellate Counsel
Petitioner argues that this Court should find cause to excuse his procedural defaults based on the ineffective assistance of appellate counsel (e.g. failing to consult with Petitioner and raise issues). (Reply, Doc. 21 at 8.)
Ineffective assistance of counsel may constitute cause for failing to properly exhaust claims in state courts and excuse procedural default. Ortiz v. Stewart, 149 F.3d 923, 932, (9th Cir. 1998). However, “[t]o constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim.” Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). “[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
Although in his PCR Petition, Petitioner argued that appellate counsel failed to communicate with him (Exh. S, PCR Pet. at 6-7), his PCR Petition for Review, asserted no claim of ineffective assistance of appellate counsel. (See Exh. U, PCR Pet. Rev. at 7-9.) Accordingly, for the reasons discussed above, Petitioner has procedurally defaulted on any claim of ineffective assistance of appellate counsel and cannot now rely on it as cause to excuse his procedural defaults.
Both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has failed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's procedurally defaulted claims or the purported "prejudice" to find an absence of cause and prejudice.
b. Ineffectiveness of PCR Counsel
Petitioner does not assert ineffectiveness of PCR counsel as cause, but Petitioner does assert in Ground 5I a substantive claim asserting ineffective assistance of PCR counsel in failing to communicate. Respondents argue that Petitioner fails to establish cause on this basis because he “has not made any showing to prove how his PCR counsel's lack of interaction with him during the collateral review process worked to his actual and substantial disadvantage.” (Answer, Doc. 19 at 20-21.) Petitioner does not reply, other than to assert that appellate counsel's lack of communication “caused the procedural defaults in his PCR claims.” (Reply, Doc. 21 at 8.)
Ordinarily, only the ineffectiveness of constitutionally required counsel can constitute cause, and PCR counsel is not constitutionally required. Patrick Poland v. Stewart, 169 F.3d 573 (9th Cir. 1999). Nonetheless, ineffective assistance of Arizona PCR counsel can constitute cause for failure to exhaust state remedies either in cases of abandonment, or on claims of ineffective assistance of counsel first raisable in the PCR proceeding. See Maples v. Thomas, 565 U.S. 266 (2012); and Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner makes no assertion that PCR counsel abandoned the representation, only that counsel failed to adequately communicate and thus failed to identify viable claims. Thus, Maples does not apply.
Because Martinez only provides cause with respect to claims of ineffectiveness of trial counsel, it cannot provide cause for failure to properly exhaust on Grounds 1, 2, 3, 4 or 5(H) (appellate counsel).
For Petitioner to rely upon Martinez, Petitioner must “demonstrate[e] two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318). “[A] claim is ‘insubstantial' if ‘it does not have any merit or ... is wholly without factual support.'” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013). That is not to suggest that the petitioner must present a fully proofed claim of ineffective assistance. “In deciding whether to excuse the state-court procedural default, the district court thus should, in appropriate circumstances, allow the development of evidence relevant to answering the linked Martinez questions of whether there was deficient performance by PCR counsel and whether the underlying trial-counsel IAC claims are substantial.” Id. at 1247. On the other hand, “vague, conclusory, and nonsensical statements are insufficient.” Carter v. Ryan, 2019 WL 4855212, at *8 (D. Ariz. Aug. 22, 2019), report and recommendation adopted, No. 2019 WL 4849545 (D. Ariz. Oct. 1, 2019).
In evaluating the ineffectiveness of PCR counsel (and as part thereof, the ineffectiveness of trial counsel), this habeas Court is not constrained by the limits on grants of habeas relief in 28 U.S.C. § 2254, i.e. state court decisions contrary to or unreasonable application of Supreme Court law, etc.. See Martinez, 132 S.Ct. at 1320 (finding limits on habeas relief for ineffectiveness of PCR counsel not applicable to cause and prejudice determination).
Petitioner fails to explain how counsel's failure to communicate resulted in his failure to raise claims in his PCR proceeding. He makes no reference to any particular claim. This conclusory allegation is insufficient to establish ineffective assistance of PCR counsel. If it is assumed that Petitioner intends to assert that the lack of communication caused the failure to bring the claims in Grounds 5C, 5D, 5F, and 5G, Petitioner also fails to tie the lack of communication to the failure to bring the claims. Again, the conclusory allegation is insufficient to establish ineffective assistance of PCR counsel.
Even if Petitioner could establish such a tie, he fails to show that his various claims of trial ineffectiveness have “some merit, ” and that PCR counsel was ineffective for failing to pursue them.
In Ground 5C, Petitioner argues that trial counsel was ineffective for failing to conduct an adequate investigation: “The defense counsel's ineffective strategy included no investigation into the evidence. This failure to investigate helped the state to convict the defendant on all counts.” (Petition, Doc. 1 at 12a.) Petitioner fails to explain what investigation counsel should have undertaken or what evidence the deficient investigation would have discovered. This conclusory claim lacks any factual support and is not substantial.
To the extent that Petitioner is referring to the failure to investigate to identify witnesses on the images, that claim is addressed on the merits hereinafter in connection with Ground 5B. To the extent that Petitioner is referring to the failure to test the images, that claim is addressed hereinafter in connection with Ground 5E.
In Ground 5D Petitioner argues trial counsel was ineffective for sharing his work product in responding to a motion to preclude. (Exh. P-3, Memo. at 7.) Petitioner references the defense's Response to State's Motion to Preclude (Exh. R-5, at 2/23, 3/4).(Exh. P-3, Memo. at 7.) The state's motion asked the court “to prohibit defense counsel from promoting, suggesting or arguing defense theories for which there is no evidence.” (Exh. R-4, Mot. Preclude at 1.) The referenced arguments were part of defense counsel's argument that the defense could properly pursue a defense of the state's failure to prove its case without producing it's own controverting evidence. So, counsel argued that the defense could properly argue the fact that “the alleged victims' identities are not known, ” and thus their ages were unknown. (Exh. R-5, Resp. M. Preclude at 2.) And, counsel argued he could properly attack the state's failure to produce evidence of the age of the victims, including evaluation of the digital images. (Id. at 3.) Petitioner fails to suggest why this was not a reasonable strategy in responding to the prosecution's motion, to ensure that the court would allow counsel to pursue the defense at trial. Moreover, Petitioner fails to suggest how he was prejudiced. For example, he fails to suggest some action by the prosecution did to use this disclosure to its own advantage. This claim is not substantial.
Petitioner cites “page 4, line 4.” The referenced Response is only 3 pages long. The undersigned assumes Petitioner intends to reference page 3.
In Ground 5E Petitioner argues that counsel was ineffective for failing to investigate the images, e.g. by testing them. (Exh. P-3, Memo. at 7.) But Petitioner proffers nothing to show what tests could have been performed or that the tests would have yielded exculpatory information. For example, even if counsel could establish that there had been some digital manipulation of the photos, that would not necessarily establish the subjects were not real children. Aschroft did not require that child pornography be raw digital images to be unprotected by the First Amendment, only that it depict actual children used in their making. This conclusory claim is not substantial.
In Ground 5F Petitioner argues that counsel conspired with the prosecution to eliminate evidence of burden shifting, by agreeing at an oral argument about what the jury would hear about the state's and defense's lack of investigation. Again, Petitioner fails to explain why such an agreement was not a reasonable strategy. He argues it shifted the burden of proof, but he fails to explain how. Perhaps the heart of this argument is the contention that the prosecution was required to produce some expert testimony or greater degree of evidence that the images were of real children. But Petitioner fails to show that a standard on the type of evidence required applied. Ashcroft did not establish one.Moreover, counsel could have reasonably concluded (given the lack of such a standard) that finger-pointing by either side was inappropriate, and to the extent the prosecution might engage in it was sufficiently detrimental to the defense to justify foregoing the opportunity for the defense to engage in it. This claim is not substantial.
Petitioner analogizes to a requirement for chemical analyses in a drug prosecution. While such testing may be routine it is not required. “The government need not introduce scientific evidence to prove the identity of a substance so long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt.” United States v. Durham, 464 F.3d 976, 984 (9th Cir. 2006) (alterations omitted).
In Ground 5G Petitioner argues trial counsel was ineffective for failing to object to the burden shifting and resulting constitutional violations. But Petitioner fails to show any improper burden shifting. To the extent that Petitioner complains that counsel did not object to the lack of greater evidence by the prosecution to establish the age of the subjects in the images, he fails to suggest any legal authority upon which counsel could have relied. Again, Ashcroft requires only that sufficient evidence be before the jury that a reasonable juror could conclude that real children were depicted. This claim is not substantial.
Accordingly, Petitioner fails to meet the cause and prejudice standard, whether based on ineffective assistance of appellate counsel, or ineffective assistance of PCR counsel.
6. Actual Innocence
The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added).
Petitioner asserts that a miscarriage of justice has occurred because of the various errors and violations occurring at trial. Although not explicitly limited to actual innocence claims, the Supreme Court has not yet recognized a "miscarriage of justice" exception to exhaustion outside of actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).
Petitioner makes no showing of actual innocence. At most, Petitioner asserts that the “evidence in the petitioner's case, which the State failed to investigate properly, may well have been protected under the U.S. Constitution's First Amendment.” (Reply, Doc. 21 at 9 (emphasis added).) But such bald speculation is not sufficient. Rather, the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner does not present any such evidence, only speculation and legal arguments.
Accordingly, Petitioner's procedurally defaulted claims in Grounds 1B, 2, 3, 4, 5C, 5D, 5E, 5F, 5G and 5H and his procedurally barred claim in Ground 1A must be dismissed with prejudice.
B. MERITS OF 5A - IAC RE EXPERT
In Ground 5A Petitioner argues trial counsel was ineffective in failing to retain an expert on manipulated computer images. Addressing both Grounds 5A and 5B, Respondents argue the PCR court's rejection on the merits of the claim (based on a failure to show prejudice) is not remediable under the deferential review of 28 U.S.C. § 2254(d). (Answer, Doc. 19 at 22-23.) Petitioner replies that he has shown a reasonable probability of prejudice. (Reply, Doc. 21 at 7.)
The PCR decision, which is the last reasoned decision on this claim, reasoned:
Point 5 appears to be a disagreement with his attorney in that even though his attorney was able to locate an expert in computer imaging, he did not call them at trial. Defendant offers no evidence or offer of proof as to what that expert would have testified to regarding his proffered defense. Defendant has therefore failed to show prejudice.(Exh. T, Order 1/10/19 at 1.)
1. Standard of Review
While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court, ” 28 U.S.C. § 2254(d) and (e), not every error justifies relief.
Deferential Review of Merits Decisions - Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). See Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013) (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits).
Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error. This statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
Errors of Law - To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).
The Supreme Court has instructed that a state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted).
To show an unreasonable application, “a state prisoner 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.” Harrington, 562 U.S. at 103.
Errors of Fact - Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).
Applicable Decisions - In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
2. Standard on Ineffective Assistance Claims
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
3. Application of Law
Petitioner fails to show any legal error in the state court's decision. The PCR court simply concluded that because Petitioner made no proffer about what testimony would have come from an expert, there was no prejudice shown, and thus rejected the claim. This analysis was neither contrary to nor an unreasonable application of Strickland nor any other Supreme Court holding.
Nor does he show any factual error. At most, he asserts that the state court should have assumed prejudice from the failure to retain and present the expert. No such assumption is appropriate. See Hurles v. Ryan, 752 F.3d 768, 782 (9th Cir. 2014) (despite counsel's deficient performance, no prejudice shown where court “can only speculate” about what a witness would have said, and thus whether it would have aided the defense).
Accordingly, Petitioner is not entitled to relief under 28 U.S.C. § 2254(d) and this claim must be denied.
C. MERITS OF 5B - IAC RE WITNESSES
In Ground 5B Petitioner asserts counsel was ineffective for failing to present other witnesses on manipulated images. The parties rely on the same analyses as that applied to Ground 5A. However, it is plain that the PCR court's explicit analysis did not extend to such other witnesses, but was instead limited to the expert.
“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Harrington v. Richter, 562 U.S. 86, 99-100 (2011). The parties do not assert and the undersigned has not found any reason to think this claim was not also disposed of on the merits, and therefore concludes it was.
In the absence of explicit reasoning, this Court is left to applying its own evaluation, comparing the outcome to that of the state court, and only then if there is a discrepancy can this court begin to evaluate whether the state court outcome was "contrary to or an unreasonable application of" Supreme Court law. See Himes v. Thompson, 336 F.3d 848, 853 and n.3 (9th Cir. 2003) ("Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable").
Nonetheless, the reasoning applied to Ground 5A demonstrates the reasonableness of rejecting Ground 5B. Movant failed to make any proffer as to which witnesses could or should have been called, or to show what their testimony would have been. Accordingly, as with Ground 5A, the state court was left to speculating about the prejudice.
This claim is without merit and must be denied.
D. MERITS OF 5I - IAC RE PCR
In Ground 5I, Petitioner argues PCR counsel was ineffective. Respondents do not address this claim. Even so, it is without merit. “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i).
E. SUMMARY
Petitioner procedurally defaulted his state remedies on his claims in Grounds 1B, 3, 5C, 5D, 5E, 5F, 5G and 5H, and was procedurally barred on an independent and adequate state ground on the claims in Grounds 1A, 2, and 4. Petitioner has failed to show cause and prejudice or actual innocence, and these claims must be dismissed with prejudice. Petitioner's claims in Ground 5A, 5B and 5C are without merit and must be denied.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Grounds 1A, 1B, 2, 3, 4, 5C, 5D, 5E, 5F, 5G and 5H of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) The balance of Petitioner's Petition for Writ of Habeas Corpus, including Grounds 5A, 5B, and 5I, be DENIED.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”