Opinion
CV 19-00348-PHX-DLR (MHB)
05-27-2020
Zera Summers, Jr., Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT:
Petitioner Zera Summers, Jr., who is confined in the Arizona State Prison Complex, East Unit, in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer and Petitioner filed a reply. (Docs. 9, 12, 13.)
BACKGROUND
Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR 2013-416358, of aggravated assault, disorderly conduct, and misdemeanor threatening and intimidating and was sentenced to a 13.25-year term of imprisonment. (Doc. 6; Doc. 9, Exhs. C, D, E.)
The Arizona Court of Appeals described the facts of the case, as follows:
¶ 2 J.F. and V.H. were at a bus stop when Summers began following them. Summers appeared to be intoxicated and began to make comments that J.F. believed were intended to make him "get violent or get mad," mostly "drunk talk." Attempting to avoid a confrontation with Summers, J.F. and V.H. returned to Vanessa's, V.H.'s mother, apartment and Summers followed them
inside. After leaving the apartment, Summers pointed a knife at J.F. and V.H. Several of the apartment complex's residents, including Daren Howard, congregated around the three. At some point during the altercation, Summers allegedly cut his finger, said "Blood Swans"[] and attempted to write something on a wall with the blood on his finger. J.F. allegedly told Summers to put the knife down and Summers put it in his back pocket.State v. Summers, 2015 WL 3618355 (Ariz. Ct. App. June 9, 2015).
¶ 3 V.H. pulled the knife from Summers' pocket, and J.F. and Summers began to swing at each other and wrestled to the ground. J.F. got on top of Summers, and Summers attempted to strike J.F. with a nearby rock. However, the rock fell out of Summers' hand, and the police arrived shortly thereafter. Summers began screaming, "I got you, motherfucker" and "[y]ou're done, motherfucker." Summers was arrested and while in police custody, Summers told Officer Silva, "I will get out" and "I will get you, bitch."
¶ 4 Summers was charged with three counts of aggravated assault, one count of threatening or intimidating, and one count of disorderly conduct. A jury found Summers guilty of one count of aggravated assault, disorderly conduct, and threatening or intimidating.
¶ 5 The trial court sentenced Summers to concurrent presumptive terms of 13.25 years' imprisonment as to the aggravated assault conviction, 5.75 years' imprisonment as to the disorderly conduct conviction, and seventy-six days of incarceration for the threatening and intimidating conviction, to run concurrently. The court also gave Summers seventy-six days of presentence incarceration credit. Summers timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031 and -4033.A.1 (West 2015).[]
In his direct appeal, Petitioner's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), advising the court that after a search of the entire record, he found no arguable question of law. Petitioner was afforded the opportunity to file a pro per supplemental brief and did so, arguing (1) that the trial court erred by admitting testimony about his "alleged gang affiliation" into evidence; (2) that the trial court erred by admitting hearsay testimony in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution; and (3) that his "conviction was obtained as the result of prosecutorial misconduct." See Summers, 2015 WL 3618355.
The appellate court subsequently affirmed Petitioner's convictions and sentences on June 9, 2015. See id. The record reflects that Petitioner did not file a petition for review with the Arizona Supreme Court.
On June 24, 2015, Petitioner filed his first Notice of Post-Conviction Relief (PCR). (Exh. K.) He filed a second PCR notice on August 6, 2015 (Exh. L) and a third PCR notice on October 19, 2016 (Exh. R). Appointed counsel filed a notice of completion notifying the court that, after a review of the record, he could find no claims for relief to raise in PCR proceedings. (Exh. O.) Petitioner was afforded the opportunity to file a pro per PCR petition and did so raising the following claims: (1) trial counsel failed to afford effective assistance; (2) appellate counsel failed to afford effective assistance; (3) post-conviction relief counsel failed to afford effective assistance; (4) the trial prosecutor engaged in misconduct; (5) the court violated Petitioner's rights by failing to (a) entertain oral argument or convene an evidentiary hearing concerning an unspecified issue, (b) issue a ruling concerning Petitioner's motion to vacate judgment, and (c) ensure that Petitioner's jury was given all relevant evidence. (Exhs. P, S, T, U.)
On February 9, 2017, the trial court summarily denied the PCR petition. (Exh. V.) Thereafter, Petitioner filed a one-page petition for review in the Arizona Court of Appeals simply stating, "[t]he Defendant seeks review of the order denying post conviction relief." The appellate court dismissed the petition on January 23, 2018. (Exhs. W, X.)
In his habeas petition, Petitioner raises four grounds for relief. In Ground One, Petitioner alleges that the trial court abused its discretion by allowing the prosecution to introduce evidence of Petitioner's gang affiliation. In Ground Two, he alleges that he was denied the effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights. In Ground Three, he alleges that he was denied the effective assistance of counsel where counsel rejected a plea offer in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights. In Ground Four, he alleges that he was denied the effective assistance of appellate counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights. (Docs. 6, 1.)
In their Answer, Respondents argue that Grounds Two through Four are procedurally defaulted without an excuse for the default, and Ground One fails on the merits.
DISCUSSION
A. Standards of Review
1. Merits
Pursuant to the AEDPA, a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is "difficult to meet." Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a "highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). "When applying these standards, the federal court should review the 'last reasoned decision' by a state court ... ." Robinson, 360 F.3d at 1055.
Antiterrorism and Effective Death Penalty Act of 1996.
A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or (2) "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." Williams, 529 U.S. at 404-05. "A state court's decision can involve an 'unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
2. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have "fairly presented" to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). A claim is only "fairly presented" to the state courts when a petitioner has "alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution." Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.").
A "general appeal to a constitutional guarantee," such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory."). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
Even when a claim's federal basis is "self-evident," or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, "either by citing federal law or the decisions of federal courts." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court "must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim" to discover implicit federal claim).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both "independent" and "adequate" - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.") (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is "independent" if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is "adequate" if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)). --------
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.") (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.") (citing Harris, 489 U.S. at 264 n.10).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred"); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies 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.'") (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are "independent" of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) ("We have held that Arizona's procedural default rule is regularly followed ["adequate"] in several cases.") (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not "strictly or regularly followed" Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the "cause and prejudice" test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. "A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis." Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable "cause" for a petitioner's failure to fairly present his claim. Regarding the "miscarriage of justice," the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as "plainly meritless"). B. Grounds Two, Three, and Four
In Ground Two, Petitioner alleges that he was denied the effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights. In Ground Three, he alleges that he was denied the effective assistance of counsel where counsel rejected a plea offer in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights. In Ground Four, he alleges that he was denied the effective assistance of appellate counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights.
The record reflects that Petitioner presented each of these claims in his pro per PCR petition. (Exhs. S, T, U.) However, Petitioner failed to present any of these claims in his one-page (one sentence) petition for review to the Arizona Court of Appeals. (Exh. W.) Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 32.2(a), 32.4(a), 32.9(c).
Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner has not established that any exception to procedural default applies. Throughout the entirety of his reply and supplement, Petitioner argues the merits of his claims and fails to address his default. Moreover, Petitioner's status as an inmate, lack of legal knowledge and assistance, and limited legal resources do not establish cause to excuse the procedural bar. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.
Petitioner has also not established a fundamental miscarriage of justice. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a "fundamental miscarriage of justice." Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is "demanding." House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial." Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner "must demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a 'miscarriage of justice.'" House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a 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. The petitioner has the burden of demonstrating that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. Petitioner has failed to establish a sufficient showing of actual innocence to demonstrate a miscarriage of justice. Therefore, Petitioner cannot excuse his procedural defaults on this basis.
Although Petitioner does not argue it, in Martinez v. Ryan, the Supreme Court created a "narrow exception" to the principle that "an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Martinez v. Ryan, 566 U.S. 1, 9 (2012). The Court held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id.
"Cause" is established under Martinez when:
(1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding.Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).
The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert "cause" to overcome the procedural bar based on attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." Id. at 16.
Since the Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding, Martinez does not apply to any of Petitioner's ineffective assistance claims. See Martinez, 566 U.S. at 16 (Martinez "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." A petitioner may not assert "cause" to overcome the procedural bar based on attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.").
Accordingly, the Court finds that Grounds Two, Three, and Four are procedurally defaulted and Petitioner has not established that any exception to procedural default applies. \\\ \\\
C. Ground One
In Ground One, Petitioner alleges that the trial court abused its discretion by allowing the prosecution to introduce evidence of Petitioner's gang affiliation. Petitioner presented this claim in his pro per supplemental brief on direct appeal.
The appellate court rejected the claim finding that the trial court did not abuse its discretion. The court found, in pertinent part:
¶ 6 Summers argues the trial court erred by admitting testimony about his "alleged gang affiliation" into evidence. Specifically, Summers asserts that such testimony was "highly prejudicial" and that its admission violated his due process rights.
¶ 7 We review the trial court's admission of testimony for an abuse of discretion. See State v. Wood, 180 Ariz. 53, 61 (1994). The trial court is best suited to "balance the probative value of challenged evidence against its potential for unfair prejudice," and we view the evidence in the light "most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998).
¶ 8 The prosecutor introduced evidence concerning Summers' purported "Blood Swans" statement at trial as proof that Summers placed J.F. in "reasonable apprehension of imminent physical injury" as required by A.R.S. § 13-1203.A.2. Moreover, Detective Tapia testified that he did not believe Summers was a member of the Swan Bloods gang.
¶ 9 In his closing argument, the State reiterated:
Folks, it didn't matter if [Summers] was in a gang or not. He's not charged with being in a gang. The reason all that evidence came out and the reason it's presented to you wasn't that [Summers] was in a gang, it was [that Summers] was saying he was in a gang. He was trying to scare [J.F.]. He was trying to intimidate him.
Summers, 2015 WL 3618355.
¶ 10 Because Summers' statement about gang affiliation, regardless of its truth or falsity, was relevant in determining whether he placed J.F. in reasonable apprehension of imminent physical injury, we find the trial court did not abuse its discretion. Moreover, we note that the prosecutor's statement in his closing argument helped clarify the purpose of such evidence to the jury and thus, prevented subjecting Summers to "unfair prejudice" and "confusing the issues" before the jury. See Ariz. R. Evid. 403.
A federal court generally may not issue a writ of habeas corpus on the basis of a perceived error of state law. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). To be entitled to habeas relief on a state law claim, the error of state law must be "sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment." Pulley, 465 U.S. at 41; see Walters, 45 F.3d at 1357 ("A state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process."); Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985) (noting that even if the admission of certain evidence was erroneous under state law, the argument is cognizable under 28 U.S.C. § 2254 only if defendant's constitutional rights were violated). A petitioner has the duty to show that the state court "committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir. 1986)).
The Court finds that the state court's determination was neither contrary to, nor an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. As noted by the Court of Appeals, the "Blood Swans" statement at trial was not offered as evidence demonstrating that Petitioner was a gang member, but rather to establish the "reasonable apprehension of imminent physical injury" element required by A.R.S. § 13-1203(A)(2). As such, the evidence was relevant. Furthermore, any confusion or unfair prejudice of the gang affiliation evidence was prevented by the State. Not only was there testimony indicating that Detective Tapia did not believe that Petitioner was a gang member, but at closing argument the State clarified that the reason the "Blood Swans" evidence was presented was to demonstrate that Petitioner was trying to scare and intimidate the victim.
Accordingly, Petitioner has not established that the trial court's admission of the evidence was so arbitrary and prejudicial as to render the trial fundamentally unfair. See Walters, 45 F.3d at 1357. The Court will recommend that Petitioner's claim as alleged in Ground One be denied and dismissed.
CONCLUSION
Having determined that Grounds Two through Four are procedurally defaulted without an excuse for the default, and Ground One fails on the merits, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 27th day of May, 2020.
/s/_________
Honorable Michelle H. Burns
United States Magistrate Judge