Opinion
CV-18-2948-PHX-JGZ (BGM)
02-11-2020
David Solomon Sovero, Petitioner, v. David Shinn, [1] et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Currently pending before the Court is Petitioner David Solomon Sovero's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 10). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 20), and Petitioner did not reply. The Amended Petition (Doc. 10) is ripe for adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Amended Petition (Doc. 10). . . .
Rules of Practice of the United States District Court for the District of Arizona.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Charge and Sentencing
Petitioner's presentence investigation report summarized the information from Phoenix Police Department Report #2009-90199243 as follows:
On February 4, 2009, police responded to a call of shots fired in an apartment complex located in the area of North 28th Street and Greenway. Upon arrival, police observed blood on the sidewalk and, upon entering apartment #4, victim [R.M.], age fifty-one, was found lying face down. Paramedics arrived and pronounced him deceased. Police learned an additional gunshot victim, [D.L.], age forty-three was transported from the area to the hospital where he later died of his injuries.
Police contacted [C.M.] who advised having arrived at the apartment complex to pick up his step-son, [D.L.], when he heard shots fired. Shortly after, [D.L.] ran from the apartment and entered the passenger side of the truck saying that Tony had shot him. As [C.M.] backed up to pull away, a subject exited the apartment holding a handgun and fired four rounds at his truck. [C.M.], who was not injured, then drove his step-son to the hospital.
[J.L.] contacted police to advise a man named Tony, later identified as the defendant and also known as Jesse Salazar, kidnapped her on February 4, 2009. She said while she was with him, he held a pistol in his lap and threatened to kill her if she ran or stalled him in any way. He told her he was going to kill subjects he had on a “hit list, ” and he threatened to kill her if she warned the victims. On February 4, 2009, the defendant shot the victims in her presence. She also watched as he fired upon the truck. [J.L.] was eventually able to get away from the defendant and then contacted the police.
On February 5, 2009, the defendant was located and followed by police, during which time he pointed a pistol at Detective Miller #6014. He was eventually taken into custody after entering the apartment of [K.W.], and he was found to be in possession of a pistol and a loaded magazine. He declined to answer any questions.Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Presentence Investigation 1/18/2011 (Exh. “A”) (Doc. 21) at 3.
Page citations refer to the CM/ECF page number for ease of reference.
On February 9, 2012, Petitioner was charged with two (2) counts of first-degree murder, one (1) count of burglary in the first degree, two (2) counts of kidnapping, two (2) counts of aggravated assault, and one (1) count of burglary in the second degree. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Indictment 2/9/2012 (Exh. “B”) (Doc. 21). On November 23, 2010, pursuant to a plea agreement, Petitioner pled guilty to two (2) counts of first-degree murder and one (1) count of aggravated assault, and the remaining charges, including the possibility of the death penalty, were dismissed. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Plea Agreement (Exh. “C”) (Doc. 21). On January 18, 2011, Petitioner was sentenced to a term of imprisonment for natural life on Count One; a second term of imprisonment for natural life on Count Two to be served consecutively with Count One; and a term of twenty-one (21) years of imprisonment on Count Six, for aggravated assault, to be served consecutively with the first two counts. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Sentence of Imprisonment 1/18/2011 (Exh. “D”) (Doc. 21).
B. Post-Conviction Relief Proceeding
On October 13, 2011, Petitioner filed his Delayed Notice of Post-Conviction Relief (“PCR”).See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Def.'s Delayed Not. of PCR (Exh. “E”) (Doc. 21). On October 28, 2011, the trial court observed that Petitioner's Notice of PCR was untimely; however, because the notice “sufficiently raised a colorable claim[, ]” the court allowed the Rule 32 proceeding to continue and appointed counsel to Petitioner. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Rule 32 PCR (Exh. “F”) (Doc. 21). On July 31, 2014, Petitioner's counsel filed a notice confirming that she had reviewed the trial file, but “did not find an issue with respect to the change of plea or sentencing.”See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Not. of Completed Review (Exh. “G”) (Doc. 21). On August 5, 2014, the trial court directed counsel to forward “the complete trial and appellate file including all transcripts in counsel's possession” to Petitioner and set a deadline for Petitioner to file a pro se PCR petition. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Notice of Completion of Post-Conviction Relief by Counsel Due Date for Pro Per Petition 8/5/2014 (Exh. “H”) (Doc. 21).
In Arizona, “[b]y pleading guilty or no contest in a noncapital case, a defendant waives the right to have the appellate courts review the proceedings by way of direct appeal, and may seek review only by filing a petition for post-conviction relief pursuant to Rule 32 and, if denied, a petition for review.” Ariz. R. Crim. P. 17.1(e); see also A.R.S. § 13-4033(B) (“In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.”). “Any person who pled guilty . . . shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding.” Ariz. R. Crim. P. 32.1. “Arizona courts have repeatedly characterized Rule 32 of-right proceedings as the functional equivalent of direct appeals, and have distinguished them from other Rule 32 proceedings.” Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007). As such, the Ninth Circuit Court of Appeals has concluded “that Arizona's Rule 32 of-right proceeding for plea convicted defendants is a form of direct review within the meaning of 28 U.S.C. §2244(d)(1)(A).” Summers, 481 F.3d at 716-17.
The Arizona Supreme Court has held that in Rule 32 proceedings, where counsel concludes that the proceeding has no merit, “a pleading defendant has a right under Ariz. Const. art. 2 § 24 to file a pro se PCR petition.” Montgomery v. Sheldon (I), 181 Ariz. 256, 260, 889 P.2d 614, 618 (1995). Subsequently, the Arizona Supreme Court affirmed this rule and reiterated:
On September 8, 2014, Petitioner filed a Motion to Appoint New Counsel with the Rule 32 court. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Appoint New Counsel (Exh. “I”) (Doc. 21). On September 18, 2014, Petitioner filed a Motion to Vacate Plea Agreement and on November 7, 2014, he filed a Motion to Extend Page Count. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Vacate Plea Agreement (Exh. “J”) (Doc. 21) & Mot. to Extend Page Count (Exh. “K”) (Doc. 22). On October 16, 2014, the trial court denied Petitioner's request for counsel and construed Petitioner's Motion to Vacate Plea Agreement as his pro se PCR Petition requiring a response. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Request for Counsel Denied[, ] Pet. Received[, ] Resp. Due Date (Exh. “L”) (Doc. 22).
1.PCR Petition
Petitioner asserted a single claim of error by the trial court regarding Petitioner's competency during his change-of-plea due to heavy psychotropic medication and five (5) counts of ineffective assistance of counsel and argued that all of these were violations of his Sixth Amendment rights. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Vacate Plea Agreement (Exh. “J”) (Doc. 21) & Mot. to Extend Page Count (Exh. “K”) (Doc. 22). Petitioner urged that at the point of the plea proceeding where he informs the court that he has taken medication in the prior twenty-four (24) hours, the court should have stopped the hearing and set a competency hearing. Id., Exh. “J” at 76-78 & Exh. “K” at 18-20. Petitioner noted that trial counsel's constant instructions to Petitioner regarding what to say during the plea proceeding is evidence of his incompetence. Id., Exh. “J” at 82-83 & Exh. “K” at 22-25. Petitioner further argued that trial counsel was ineffective because he spent just over six (6) hours visiting Petitioner in jail over the course of a year, despite this being a “complex capital case.” Id., Exh. “K” at 29-31. Petitioner also alleged that trial counsel was ineffective due to a failure to interview key witnesses favorable to Petitioner. Id., Exh. “K” at 31-33. Petitioner asserted that trial counsel was ineffective due to an alleged failure to file a motion for disclosure regarding Officer Cassidy's report and photographs regarding witness interviews. Answer (Doc. 20), Exh. “K” (Doc. 22) at 33. Petitioner alleged a Bradyviolation regarding a failure to disclose the allegedly favorable evidence contained in Officer Cassidy's report. Id., Exh. “K” at 33. Finally, Petitioner asserted that trial counsel's alleged failure to file motions for impeachment regarding certain witnesses constituted ineffective assistance. Id., Exh. “K” at 34-37.
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
2.Rule 32 Court Order
On February 3, 2015, the Rule 32 court issued its Order dismissing the Petition for PCR. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Minute Entry 2/3/2015 (Exh. “O”) (Doc. 22). The Rule 32 court delineated the test for ineffective assistance of counsel, stating that a Defendant was required “to show that (1) counsel's performance was deficient, that is, not reasonable under all the circumstances and under prevailing professional standards; and (2) the deficient performance prejudiced the defense, that is, there is a reasonable probability that but for counsel's deficient conduct, the result of the proceeding would have been different.” Id., Exh. “O” at 164 (citing State v. Salazar, 173 Ariz. 399, 414, 844 P.2d 566, 581 (Ariz. 1992)). The Rule 32 court further noted that “[a] reviewing judge must ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Id., Exh. “O” at 164-65 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)). The Rule 32 court observed that “[t]here [wa]s a question as to whether this claim is timely[, ] [but] [r]egardless of that issue, his claims have no factual merit.” Id., Exh. “O” at 165. Regarding the issue of Petitioner's competency during his change-of-plea, the Rule 32 court noted that “Defendant said on the record that the prescribed medications helped him to understand the proceedings rather than impeding his mental competency.” Id., Exh. “O” at 165. The Rule 32 court further observed that Petitioner's “counsel also commented on his personal observations that the medications ‘[we]re helping him more.'” Id., Exh. “O” at 165. The Rule 32 court found that Petitioner's “claim regarding lack of jail visits by his attorney [was] without merit and [was] not supported by the record.” Answer (Doc. 20), Exh. “O” (Doc. 22) at 165. The Rule 32 court also observed that “Defendant d[id] not show how any of the witnesses he claimed were not interviewed could have possibly helped his defense[, ] . . . [because] all or most of these witnesses related to counts that were dismissed as part of the plea.” Id., Exh. “O” at 165. Regarding the photographs of the cul-de-sac, the Rule 32 court noted that they had been disclosed and “any prejudice would have related to count 6 only.” Id., Exh. “O” at 165. Lastly, the Rule 32 court stated that “all information regarding witness's prior criminal histories were disclosed to defense counsel.” Id., Exh. “O” at 165. As such, the Rule 32 court found the petition without merit. Id., Exh. “O” at 165.
3. PCR Appeal
On March 9, 2015, Petitioner filed his Petition for Review with the Arizona Court of Appeals. See Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23). Petitioner sought relief based upon alleged ineffective assistance of counsel, prosecutorial misconduct/disclosure, and competency. Id., Exh. “R” at 20. Petitioner argued that the trial court violated his due process rights when it “failed to cease proceedings at his acknowledgment of defendant [sic] competency issue's [sic]” and order a hearing to determine competency. Id., Exh. “R” at 27. Petitioner further asserted that the Rule 32 court judge also presided over Petitioner's change-of-plea hearing, and as such could not be impartial. Id., Exh. “R” at 26-27. Petitioner also urged that his impairment lasted throughout the duration of his criminal case and that these concerns were also raised with the court during sentencing. Id., Exh. “R” at 29-32.
Petitioner argued that trial counsel was ineffective because he spent just over six (6) hours on his case in the course of a year. Answer (Doc. 20), Exh. “R” (Doc. 23) at 33- 37. Petitioner further asserted that trial counsel was ineffective because he “fail[ed] to investigate and interview . . . witnesses to preserve such statements which would have exonerated defendant of COUNT 1 FIRST DEGREE MURDER, COUNT 2 FIRST DEGREE MURDER AND COUNT 6 AGGRAVATED ASSAULT.” Id., Exh. “R” at 37- 38 (emphasis in original). Petitioner contended that counsel's alleged failure to interview witnesses prior to conducting plea negotiations constituted ineffective assistance. Id., Exh. “R” at 37-42. Petitioner also argued that trial counsel was ineffective based on an alleged “failure to file a motion to request a ‘Rule 609 Hearing' to impeach” certain witnesses. Id., Exh. “R” at 42-44. Petitioner asserted that trial counsel was ineffective due to an alleged failure “to file a motion for the State to disclose the ‘Review of Law Enforcement Integrity File' pursuant to Brady v. Maryland[.]” Id., Exh. “R” at 44-45. Additionally, Petitioner alleged that trial counsel was ineffective for failing to file a motion to depose detective witnesses, as well as failing to move for remand for a new determination of probable cause and challenge the grand jury proceedings. Id., Exh. “R” at 45-47. Finally, Petitioner asserted that the prosecutor failed to disclose an officer's supplemental report in violation of Brady, as well as Petitioner's due process and equal protection rights. Id., Exh. “R” at 47-50.
It appears that Petitioner is conflating the amount of time counsel visited with him at the jail versus the total amount of time spent on the case. See Answer (Doc. 21), Exh. “K” at 29-31.
On June 9, 2015, Petitioner filed a Motion to Appoint Mental Health Expert, a Motion for Production of Documents and Disclosure, and Motion to Appoint Private Investigator with the trial court. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Pet.'s Mot. to Appoint Mental Health Expert (Exh. “S”) (Doc. 23) & Pet.'s Mot. for Prod. of Docs. and Discl. (Exh. “T”) (Doc. 23) & Pet.'s Mot. to Appoint Private Inv. (Exh. “U”) (Doc. 23). On July 28, 2015, the trial court acknowledged the filings but, in light of Petitioner's pending appellate review, concluded that the motions were solely for information and took no action. Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Pldg. Intended for Other Ct. (Exh. “V”) (Doc. 23).
On April 27, 2017, the Arizona Court of Appeals granted review, but denied relief. See Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Mem. Decision 4/27/2017 (Exh. “W”) (Doc. 23). The appellate court observed that in asserting that his pleas were not knowing, intelligent, and voluntary due to taking psychotropic medication under a doctor's care, Petitioner failed to offer any evidence from a medical professional to explain the effects of the medication, and the medical records he provided ended six (6) months prior to the change-of-plea hearing. Id., Exh. “W” at 80. The appellate court also noted that at the change-of-plea hearing, Petitioner did not identify the medications or complain of their effects but did explain to the court “that the medications helped him think more clearly.” Id., Exh. “W” at 80. The appellate court held that “[n]othing about [the change-of-plea] colloquy suggest[ed] [Petitioner's] pleas were not knowing, intelligent and voluntary.” Id., Exh. “W” at 80. The appellate court further held that “because Sovero failed to present a colorable claim regarding his pleas, he has also failed to present a colorable claim of ineffective assistance of counsel based on the failure to raise this issue at the change-of-plea hearing.” Id., Exh. “W” at 81.
Regarding Petitioner's argument that “the State failed to disclose the supplemental report of an officer who investigated the aggravated assault[, ]” the appellate court observed that “a plea agreement waives all non-jurisdictional defenses, errors and defects that occurred before the plea, meaning relief on this ground properly is denied.” Answer (Doc. 20), Exh. “W” (Doc. 23) at 81 (citing State v. Moreno, 134 Ariz. 199, 200 (Ariz.Ct.App. 1982)). The appellate court next considered Petitioner's ineffective assistance of counsel claims and explained that “[t]o state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant.” Id., Exh. “W” at 81 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Regarding the time counsel spent at the jail facility visiting Petitioner, the appellate court held that “[t]o argue counsel was not at the jail facility for as many hours as counsel claimed nearly a year before Sovero pled guilty does not present a colorable claim that counsel's performance fell below objectively reasonable standards or that Sovero suffered any prejudice.” Id., Exh. “W” at 81. Secondly, the appellate court found that Petitioner's argument regarding an alleged failure to investigate and/or interview witnesses was not supported by affidavits from those witnesses. Id., Exh. “W” at 81. Third, the court of appeals determined that Petitioner's “argument regarding a Rule 609 hearing . . . show[ed] no basis for relief[, ] because [t]here was no reason to seek such a hearing unless and until it became apparent that the matter would proceed to trial and those witnesses would testify.” Id., Exh. “W” at 82. Finally, the appellate court held that Petitioner failed to present argument to the Rule 32 trial court regarding counsel's alleged failure to obtain “law enforcement integrity files, ” depose investigators, and challenge the grand jury proceedings. As such, the appellate court declined to address the issues. Id., Exh. “W” at 82.
On January 3, 2018, Petitioner sought review by the Arizona Supreme Court. Amended Petition (Doc. 10), Ariz. Supreme Ct., No. 2 CR 17-0231-PR, Pet.'s Pet. for Review 1/3/2018 (Exh. “A”) at 17-38. On the same date, Petitioner filed a motion to suspend Rules 32.9(c)(1) and 32.9(c)(1)(i) relating to the time for filing a petition for review. Answer (Doc. 20), Ariz. Supreme Ct., No. 2 CR 17-0231-PR, Pet.'s Mot. to Suspend Rules 1/3/2018 (Exh. “X”). On March 14, 2018, the Arizona Supreme Court granted Petitioner's motion to suspend the rules and denied his petition for review. Amended Petition (Doc. 10), Ariz. Supreme Ct., No. 2 CR 17-0231-PR, Ltr. to Sovero 3/14/2018 (Doc. 10-1) at 14. On April 13, 2018, the Arizona Court of Appeals issued its mandate. Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Mandate 4/13/2018 (Exh. “Y”) (Doc. 23)
C. The Instant Habeas Proceeding
On September 18, 2018, Petitioner filed his Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). On November 27, 2018, Petitioner filed an amended Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 10). Petitioner asserts two (2) grounds for relief. See Amended Petition (Doc. 10). First, Petitioner alleges a violation of his constitutional rights pursuant to the Fifth and Fourteenth Amendments because the high dosages of psychotropic medications he was taking impaired his mental state during the proceedings. Id. at 6. Petitioner asserts that he was not competent due to the high doses and as such did not enter his plea knowingly and voluntarily. Id. Petitioner further contends that the Maricopa Superior Court did not conduct a competency hearing, which Petitioner asserts it should have, given his level of impairment. Id. Petitioner urges that the court was made aware of this issue through the testimony of family members. Id.
Second, Petitioner asserts ineffective assistance of trial counsel. Id. at 9. As an initial matter, Petitioner asserts that counsel was ineffective because he “was aware of petitioners [sic] impairment of psychotropic medications during Plea Hearing and Sentencing therefore allowing petitioner to enter into his plea NOT knowingly and intelligently.” Id. (emphasis in original). Petitioner also asserts that counsel was ineffective because he allegedly failed to 1) obtain Brady material from the county attorney; 2) “provide sufficient time to discuss defense strategies as this case was a capital offense; 3) “investigate and interview witnesses” resulting in Petitioner entering his plea unknowingly and unintelligently; 4) obtain law enforcement “integrity files” “to suppress [and] impeach detectives fabricated claims[.]” Id.
On March 25, 2019, Respondents filed their Answer (Doc. 20).
II. STANDARD OF REVIEW
A. In General
The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, “[t]he statute's design is to ‘further the principles of comity, finality, and federalism.'” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] 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 . . . beyond any possibility for fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original).
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).
Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)).
In Arizona, however, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).
C. Procedural Default
“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 650 (1991). Moreover, federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id. (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows:
The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner's habeas petition may be precluded from federal review due to procedural default in two ways. First, where the petitioner presented his claims to the state court, which denied relief based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct. at 2554. Federal courts are prohibited from review in such cases because they have “no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in original).
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed. 2D 434 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”). In addition to cause, a habeas petitioner must show actual prejudice, meaning that he “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.
The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct ‘a fundamental miscarriage of justice.'” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
In Arizona, a petitioner's claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial, on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3) (2018). “If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently' waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622.
III. STATUTE OF LIMITATIONS
A. Timeliness
As a threshold matter, the Court must consider whether Petitioner's petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondents do not dispute the timeliness of Sovero's petition. The Court has independently reviewed the records and finds that the Amended Petition (Doc. 10) is timely pursuant to 28 U.S.C. § 2244(d)(1)(A).
IV. ANALYSIS
A. Ground One: Competency
Petitioner alleges that “[c]ompentency [sic] issue's [sic] due to impairment of HIGH dosages of Psychotropic Medications which impaired petitioners [sic] mental state during the proceedings of Maricopa County Superior Court No. CR2009-109769-001 which said dosages had been administered till point of sentencing by STATE COURT judgment there accrued violation of Constitutional law under the United States Const. Amend. 14 & 5.” Petition (Doc. 10) at 6 (emphasis in original). Respondents assert that “Sovero did not raise any due process claim relating to this issue in his petition for post-conviction relief[, ] . . . [and] [a]s such, this claim has not been raised before both the trial court and court of appeals and cannot now be raised in his petition.” Response (Doc. 20) at 13-14. The Court agrees with Respondents.
As discussed in Section II.B., supra, prior to bringing a claim to federal court, a habeas petitioner must first present all claims to the state court. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 529 U.S. 1009 (2000) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Merely labeling a claim “federal” or making a passing reference to the United States Constitution does not constitute “fair presentment.” See Baldwin v. Reese, 541 U.S. at 33, 124 S.Ct. at 1351; see also Duncan v. Henry, 513 U.S. 364, 365-66 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution”). Moreover, Petitioner cannot expect the state court to read beyond the four corners of the petition to meet the fair presentation requirement. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds).
Here, Petitioner presented his claim regarding the trial court's alleged error as to competency to the Rule 32 court as a violation of the Sixth Amendment and state law, without mention of Due Process. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Vacate Plea Agreement (Exh. “J”) (Doc. 21) & Mot. to Extend Page Count (Exh. “K”) (Doc. 22). “Whether a claim is exhausted through a direct appellate procedure, a post-conviction procedure, or both, the claim should be raised at all appellate stages afforded under state law as of right by that procedure.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). Thus, “where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless ‘there are special and important reasons therefor' . . . [r]aising the claim in such a fashion does not, for the relevant purpose, constitute ‘fair presentation.'” Castille v. Peoples, 489 U.S. 346, 351 (1989). Petitioner raised his due process claim as part of the appeal of Rule 32 petition to the Arizona Court of Appeals. See Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23). Because Petitioner only raised this issue to the Arizona Court of Appeals during review of his PCR petition, it does not constitute fair presentation. Casey, 386 F.3d at 918.
As such, the claim would now be precluded and meets the technical requirements for exhaustion. Ariz. R. Crim. P. 32.2(a)(3) (2018); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court”). Therefore, Petitioner's claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”). Additionally, when a Petitioner presents his claim to the state court, and is denied upon independent and adequate state grounds, this Court is prohibited from review. This is because the “state law determination [] is sufficient to support the judgment, [and] resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Coleman, 501 U.S. at 728, 111 S.Ct. at 2554. Accordingly, Petitioner is not entitled to habeas relief.
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[, ] . . . [and as such, ] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Therefore, Petitioner's claim is denied.
B. Ground Two: Ineffective Assistance of Counsel
Petitioner asserts five (5) claims of ineffective assistance of counsel, as follows: 1) because counsel “was aware of petitioners [sic] impairment of psychotropic medications during Plea Hearing and Sentencing therefore allowing petitioner to enter into his plea NOT knowingly and intelligently”; 2) for allegedly failing to obtain Brady material from the county attorney; 3) for allegedly failing to “provide sufficient time to discuss defense strategies as this case was a capital offense; 4) for allegedly failing to “investigate and interview witnesses” resulting in Petitioner entering his plea unknowingly and unintelligently; and 5) for allegedly failing to obtain law enforcement “integrity files” “to suppress [and] impeach detectives fabricated claims[.] Amended Petition (Doc. 10) at 9 (emphasis in original). The Court will address each of these allegations in turn.
1. Ground 2(a): Impairment Due to Psychotropic Medications
Petitioner's first claim of ineffective assistance of counsel is based upon counsel's alleged awareness that Petitioner was impaired by psychotropic medications during his change-of-plea and sentencing but allowed Petitioner to “enter into his Plea Agreement NOT knowingly and intelligently[.]” Amended Petition (Doc. 10) at 9. Respondents assert that although Petitioner raised this claim in his PCR petition, he did not raise it in his petition for review to the court of appeals. Answer (Doc. 20) at 14. The Court agrees with Respondents.
As discussed in Section II.B., supra, prior to bringing a claim to federal court, a habeas petitioner must first present all claims to the state court. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 529 U.S. 1009 (2000) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Merely labeling a claim “federal” or making a passing reference to the United States Constitution does not constitute “fair presentment.” See Baldwin v. Reese, 541 U.S. at 33, 124 S.Ct. at 1351; see also Duncan v. Henry, 513 U.S. 364, 365-66 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution”). Moreover, Petitioner cannot expect the state court to read beyond the four corners of the petition to meet the fair presentation requirement. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds).
Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). “Whether a claim is exhausted through a direct appellate procedure, a post-conviction procedure, or both, the claim should be raised at all appellate stages afforded under state law as of right by that procedure.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)).
Here, Petitioner presented his claim regarding counsel allegedly failing to spend sufficient time meeting with Petitioner to the Rule 32 court as a violation of the Sixth Amendment. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Vacate Plea Agreement (Exh. “J”) (Doc. 21) & Mot. to Extend Page Count (Exh. “K”) (Doc. 22). He did not, however, raise this claim as part of the appeal of the Rule 32 petition to the Arizona Court of Appeals. See Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23). Because Petitioner only raised this to the Rule 32 court in his PCR petition, it does not constitute fair presentation. Casey, 386 F.3d at 918.
As such, the claim would now be precluded and meets the technical requirements for exhaustion. Ariz. R. Crim. P. 32.2(a)(3) (2018); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court”). Therefore, Petitioner's claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”). Accordingly, Petitioner is not entitled to habeas relief.
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[, ] . . . [and as such, ] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Therefore, Petitioner's claim is denied. . . .
2. Ground 2(b): Brady Material
Petitioner asserts that trial counsel was ineffective for failing to obtain Brady material from the Maricopa county attorney. Amended Petition (Doc. 10) at 9. Respondent acquiesces that broadly construed, Petitioner properly exhausted this claim in state court but urges that Petitioner has failed to demonstrate how counsel's actions fell below an objective standard of reasonableness. Answer (Doc. 20) at 21. The Court questions whether Petitioner fairly presented his claim to both the Rule 32 court and the appellate court; however, it agrees with Respondents that he cannot show that counsel's actions fell below an objective standard of reasonableness.
a. Legal Standards
For cases which have been fairly presented to the State court, the Supreme Court elucidated a two-part test for determining whether a defendant could prevail on a claim of ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must show that counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner must show that this performance prejudiced his defense. Id. Prejudice “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable.” Id. Ultimately, whether or not counsel's performance was effective hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth
Amendment's guarantee of effective assistance is not meant to “improve the quality of legal representation, ” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original).
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so[.]” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted). Judging counsel's performance must be made without the influence of hindsight. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient performance” or “sufficient prejudice, ” Petitioner cannot prevail on his ineffectiveness claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. at 788) (alterations in original). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential standard to review the state court's ‘last reasoned decision.'” Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in 2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner also bears the burden of showing that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d).
b. Counsel's Performance
Petitioner cannot show that counsel's performance was deficient. In his PCR petition, Petitioner asserted that:
Officer Cassidy dint [sic] get his report of residence in cul-de-sac photo's [sic] ect. [sic] which would have proved NO ASSAULT ON POLICE. This is clearly a Brady issue because State did NOT disclose the supplements from this officer - Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). TRIAL COUNSEL failed to file a - MOTION for Disclosure - this shows clearly of counsel's ineffectiveness. -see-Exhibit (75) How Officer Cassidy interviewed [sic] resident 3001 E. Nisbet Rd & 3009 E. Nisbet Rd. Interview not included in police report - State did not disclose.Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Extend Page Count (Exh. “K”) (Doc. 22) at 33 (emphasis in original). The Rule 32 court stated that “[i]neffective assistance of counsel is determined by a two-pronged test, requiring Defendant to show that (1) counsel's performance was deficient, that is, not reasonable under all the circumstances and under prevailing professional standards; and (2) the deficient performance prejudiced the defense, that is, there is a reasonable probability that but for counsel's deficient conduct, the result of the proceeding would have been different.” Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Minute Entry 2/3/2015 (Exh. “O”) (Doc. 22) (citing State v. Salazar, 173 Ariz. 399, 414, 844 P.2d 566, 581 (Ariz. 1992)). The Rule 32 court further observed that “the ineffective assistance claim is likewise without factual merit and does not present a colorable claim . . . the photographs of the Cul-de-sac were disclosed and any prejudice would have related to count 6 only.” Id., Exh. “O” at 165.
On appeal, Petitioner asserted a Brady violation in the context of prosecutorial misconduct and/or a failure of disclosure. Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23) at 47-50. Petitioner urged that if Officer Cassidy's supplemental report had been disclosed, Petitioner would have been exonerated of the aggravated assault claim. Id., Exh. “R” at 49. The appellate court considered Petitioner's argument as focusing on the State's alleged failure, not ineffective assistance of counsel and noted that “a plea agreement waives all non-jurisdictional defenses, errors and defects that occurred before the plea, meaning relief on this ground properly is denied.” Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Mem. Decision 4/27/2017 (Exh. “W”) (Doc. 23) at 81. Regarding Petitioner's ineffective assistance of counsel claims, the appellate court indicated that “[t]o state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant.” Id., Exh. “W” at 81 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The court of appeals held that on the record before it, relief was properly denied because Petitioner “failed to present a colorable claim of ineffective assistance of counsel.” Id., Exh. “W” at 81.
As is evidenced by Petitioner's argument to the court of appeals, any Brady issue relates to the conduct of the prosecutor, not Petitioner's counsel. The record does not support a finding that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original). Petitioner has also failed to present any evidence to suggest that the Arizona courts' decisions regarding his ineffective assistance claim regarding a motion for Brady material is contrary to or an unreasonable application of clearly established Supreme Court law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly established Federal law or unreasonably determine the facts in light of the evidence presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 738 F.3d at 991. Petitioner's ineffective assistance of counsel claim regarding the alleged failure to file a motion for Brady material is without merit.
3. Ground 2(c): Time with Petitioner
Petitioner asserts that counsel “failed to provide sufficient time to discuss defense strategies as this case was a capital offense[.]” Amended Petition (Doc. 10) at 9. Respondents assert that in his PCR petition, Petitioner raised the claim that counsel “did not spend enough time preparing for his complex capital case[, ]” but he did not allege that “counsel failed to allow enough time to discuss defense strategies.” Answer (Doc. 20) at 14. Respondents contend that due to this failure, Petitioner's claim is procedurally defaulted. Id. The Court agrees with Respondents.
As discussed in Section II.B., supra, prior to bringing a claim to federal court, a habeas petitioner must first present all claims to the state court. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 529 U.S. 1009 (2000) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Merely labeling a claim “federal” or making a passing reference to the United States Constitution does not constitute “fair presentment.” See Baldwin v. Reese, 541 U.S. at 33, 124 S.Ct. at 1351; see also Duncan v. Henry, 513 U.S. 364, 365-66 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution”). Moreover, Petitioner cannot expect the state court to read beyond the four corners of the petition to meet the fair presentation requirement. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds).
Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”).
Here, Petitioner argued that counsel was ineffective because counsel spent only six (6) hours and seventeen (17) minutes with Petitioner preparing his case. Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Extend Page Count (Exh. “K”) (Doc. 22) at 28-31. On appeal, Petitioner argued that counsel only spent just over six (6) hours preparing his case in the course of a year. Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23) at 33-37. Petitioner did not assert to the state courts that counsel was ineffective in the time in which he discussed defense strategy to Petitioner.
As such, the claim would now be precluded and meets the technical requirements for exhaustion. Ariz. R. Crim. P. 32.2(a)(3) (2018); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court”). Therefore, Petitioner's claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”).
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[, ] . . . [and as such, ] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Therefore, Petitioner's claim is denied.
4. Ground 2(d): Witness Interviews
Petitioner asserts that counsel allegedly “failed to investigate and interview witnesses therefore allowing petitioner to enter plea NOT knowingly & intelligently[.]” Amended Petition (Doc. 10) at 9. Respondents assert that Petitioner references post-conviction counsel's alleged failure to “pursue the uninterviewed witnesses or investigate any of Petitioner's PCR claims” and is a non-cognizable claim for ineffective assistance of PCR counsel. Amended Petition (Doc. 10) at 22. The Court disagrees with Respondents assertion that this claim is non-cognizable; however, finds the claim without merit.
Because Petitioner pled guilty, his post-conviction proceeding was his only form of direct review. See Section I.B. n. 4, supra. As such, the Court finds Petitioner's claim would be cognizable even if directed at PCR counsel; however, as asserted, the Court finds Petitioner is directing this claim at trial counsel.
In his PCR petition, Petitioner alleged that trial counsel was ineffective for failing to interview key witnesses favorable to Petitioner. Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Extend Page Count (Exh. “K”) (Doc. 22) at 31-33. The Rule 32 court denied Petitioner's claim because he failed to “show how any of the witnesses he claimed were not interviewed could have possibly helped his defense[, ] . . . [because] all or most of these witnesses related to counts that were dismissed as part of the plea.” Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Minute Entry 2/3/2015 (Exh. “O”) (Doc. 22) at 165. Petitioner reasserted this claim to the court of appeals. Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23) at 37-42. Upon review, the appellate court found that Petitioner's argument regarding an alleged failure to investigate and/or interview witnesses was not supported by affidavits from those witnesses. Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Mem. Decision 4/27/2017 (Exh. “W”) (Doc. 23) at 81.
As discussed in Section IV.B.2.a, supra, the standard requires Petitioner to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Petitioner has failed to show counsel acted deficiently and has not presented any evidence to suggest that the Arizona courts' decisions regarding his ineffective assistance claim regarding witness interviews is contrary to or an unreasonable application of clearly established Supreme Court law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly established Federal law or unreasonably determine the facts in light of the evidence presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 738 F.3d at 991. Petitioner's ineffective assistance of counsel claim regarding the alleged failure to interview witnesses is without merit.
5. Ground 2(e): Integrity Files
Petitioner asserts that counsel was ineffective for an alleged failure “to obtain ‘law enforcement integrity files' as to supress [sic] and impeach detectives fabricated claims.” Amended Petition (Doc. 10) at 9. Respondents assert that Petitioner only raised this claim before the court of appeals, and it is now procedurally defaulted. The Court agrees with Respondents.
As discussed in Section II.B., supra, prior to bringing a claim to federal court, a habeas petitioner must first present all claims to the state court. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 529 U.S. 1009 (2000) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Merely labeling a claim “federal” or making a passing reference to the United States Constitution does not constitute “fair presentment.” See Baldwin v. Reese, 541 U.S. at 33, 124 S.Ct. at 1351; see also Duncan v. Henry, 513 U.S. 364, 365-66 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution”). Moreover, Petitioner cannot expect the state court to read beyond the four corners of the petition to meet the fair presentation requirement. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds).
Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). “Whether a claim is exhausted through a direct appellate procedure, a post-conviction procedure, or both, the claim should be raised at all appellate stages afforded under state law as of right by that procedure.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)).
Here, Petitioner only presented his claim regarding counsel's alleged failure to obtain “integrity files” as part of his appeal of the Rule 32 petition to the Arizona Court of Appeals. See Answer (Doc. 20), Ariz.Ct.App., No. 2 CA-CR 15-0142-PRPC, Pet.'s Pet. for Review (Exh. “R”) (Doc. 23). This does not constitute fair presentation. Casey, 386 F.3d at 918. As such, the claim would now be precluded and meets the technical requirements for exhaustion. Ariz. R. Crim. P. 32.2(a)(3) (2018); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court”). Therefore, Petitioner's claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”). Accordingly, Petitioner is not entitled to habeas relief.
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[, ] . . . [and as such, ] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Therefore, Petitioner's claim is denied.
V. CONCLUSION
In light of the foregoing, the Court finds that Petitioner's habeas claims are either procedurally defaulted or without merit and recommends the Amended Petition (Doc. 10) be denied.
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 10).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No. replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-18-2948-PHX-JGZ
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.
If, after conscientiously searching the record for error, appointed counsel in a PCR proceeding finds no tenable issue and cannot proceed, the defendant is entitled to file a pro se PCR.State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996).