Opinion
CV-22-08112-PCT-JAT (ASB)
07-06-2023
Donnie Romone Twiggs, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge.
Petitioner Donnie Romone Twiggs (“Petitioner”), who is confined in the Arizona State Prison Complex-Tucson, has filed a pro se Second Amended Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. 9.) On January 26, 2023, Petitioner additionally filed a Motion for Release Order (“Motion”). (Doc. 17.) For the reasons that follow, the Court recommends that the Petition be dismissed and the Motion be denied.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-22-08112-PCT-JAT (ASB).
PROCEDURAL HISTORY
I. State Proceedings
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court s opinion should not be afforded the presumption of correctness).
On March 7, 2018, Department of Corrections Sergeants J.Y. and S.P. followed Twiggs, an inmate at a prison in Mohave County, as he walked to his dormitory. Once there, J.Y. and S.P. conducted a strip search. As Twiggs removed a sock, six pea-sized paper bindles fell out. Five of the six bindles contained a green leafy substance. One bindle was tested and proved to be “spice” - a type of synthetic marijuana. Twiggs said he did not know what the bindles contained, saying he found them as he walked to his dormitory and wanted to find out what they were.
At trial, corrections officers testified that spice is a sought-after drug in prison. Spice costs much more in prison than it does on the street. Though spice generally has a depressive effect, it causes some to become aggressive. The aggressive effects make spice a danger to guards and inmates alike. Corrections officers also testified the way Twiggs's spice was packed is consistent with packaging for sale. The pea-sized bindles are used for quicker, more concealed transfers between inmates when sold. Typically, one or two bindles in an inmate's possession is consistent with personal use, but more than that indicates the bindles are meant for sale.
A jury convicted Twiggs of three counts: (1) promoting prison contraband; (2) possession of dangerous drugs for sale; and (3) possession of drug paraphernalia. The jury also found, as an aggravating factor, Twiggs committed count 2 “as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.” After considering the aggravating and mitigating circumstances, the superior court sentenced Twiggs to concurrent sentences of 15.75 years for count 1, 18 years for count 2, and 3.75 years for count 3.(Doc. 16-1, Exh. K, at 2-3, internal citation omitted.)
B. Direct Appeal
Petitioner filed a direct appeal and presented two issues in his opening brief:
I. Was there insufficient evidence that [Petitioner] committed
the offense of Possession of Dangerous Drugs for Sale?
II. Did the superior court err in finding the aggravating factor of commission of the offense as consideration for the receipt of pecuniary gain?(Doc. 16-1, Exh. I, at 2.) In a Memorandum Decision filed October 22, 2020, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. (Doc. 16-1, Exh. K, at 4.) Petitioner did not file a motion for reconsideration and sought no further review by the Arizona Supreme Court. (Doc. 16-1, Exh. K.) The Mandate issued on December 11, 2020. (Id.)
C. Post-Conviction Relief Proceedings
On December 31, 2020, Petitioner timely filed a pro se Notice of Post-Conviction Relief (“PCR”) under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 16-2, Exh. M, at 2.) On March 18, 2021, Petitioner filed a PCR petition in the Mohave County Superior Court (“Superior Court”). In his PCR filing, Petitioner alleged his trial counsel was ineffective for failing to: (1) file a motion to suppress; (2) call Sergeant Poulter as a witness; (3) object to references of Petitioner being an inmate at a correctional facility; and (4) object to the trial court's limiting instruction that the jury could not infer guilt based on the fact that Petitioner was an inmate. (Doc. 16-2, Exh. O.)
On June 11, 2021, the Superior Court denied the PCR petition and dismissed the pending Rule 32 proceedings, finding Petitioner “failed to state a colorable claim which [would] allow him relief under Rule 32 and no purpose [would] be served by any further proceedings.” (Doc. 16-2, Exh. R, at 9.) On August 9, 2021, Petitioner filed a Petition for Review in the Arizona Court of Appeals; that petition was initially dismissed as untimely. (Doc. 16-2, Exh. U.) On September 22, 2021, after Petitioner provided the court of appeals with a copy of the Superior Court order extending Petitioner's time to file a petition for review, the appeals court granted Petitioner's motion to reinstate and designated Petitioner's September 3, 2021, petition as the sole petition for review. (Doc. 16-2, Exh. CC.)
Petitioner's September 3, 2021, petition for review alleged: (1) the trial court's limiting instruction regarding Petitioner's status as an inmate was prejudicial; (2) the prosecutor prejudiced Petitioner by informing the jury he was an inmate; (3) trial counsel was ineffective for not objecting to the limiting instruction; (4) the limiting instruction violated Petitioner's Fifth Amendment right to remain silent; and (5) trial counsel was ineffective for not calling Sergeant Poulter as a witness or insuring his attendance at trial, thereby violating his Sixth Amendment right to confront adverse witnesses. (Doc. 16-2, Exh. Z.) On January 18, 2022, the Arizona Court of Appeals granted review but denied relief, finding Petitioner failed to show that the trial court abused its discretion by denying his PCR petition. (Doc. 16-3, Exh. HH.)
Petitioner filed a petition for review in the Arizona Supreme Court on January 28, 2022, and claimed: (1) the trial court abused its discretion when giving the limiting instruction; (2) the prosecutor prejudiced Petitioner when informing the jury he was an inmate; and (3) trial counsel was ineffective by failing to object to the limiting instruction and the prosecutor's reference to Petitioner's status as in inmate in his opening statement. (Doc. 16-3, Exh. II.) The Arizona Supreme Court denied the petition for review on June 13, 2022. (Doc. 16-3, Exh. JJ.) The Mandate issued on July 13, 2022. (Doc. 16-3, Exh. HH.) II. Federal Proceedings
A. Petitioner's Habeas Petition
On June 24, 2022, Petitioner filed a “Petition for Review (Due Process)” before this Court, which the Court construed as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) After the Court granted Petitioner's Application to Proceed In Forma Pauperis and dismissed Petitioner's first amended habeas petition with leave to amend (Doc. 8), Petitioner filed a Second Amended Petition on October 14, 2022, where he asserts:
GROUND ONE: The trial court violated Petitioner's Fifth and Fourteenth Amendment rights when it gave a limited jury instruction regarding Petitioner's status as a prisoner.
GROUND TWO: The limited instruction violated Petitioner's
Fifth Amendment right to remain silent.
GROUND THREE: The prosecutor committed prosecutorial misconduct when informing the jury in his opening statement that Petitioner was an inmate, thereby violating Petitioner's Fifth and Fourteenth Amendment rights.
GROUND FOUR: Petitioner was deprived of the right to effective assistance of counsel when trial counsel failed to object to the limiting instruction given by the court, resulting in a violation of his Fifth, Sixth, and Eighth Amendment rights.(Doc. 9.)
In response, Respondents argue: (1) Grounds One through Three are procedurally defaulted without excuse, and (2) Ground Four fails on the merits. (Doc. 16 at 8, 15.)
B. Petitioner's Motion for Release
On January 26, 2023, Petitioner filed a Motion for Release Order (Doc. 17), requesting the Court release him from the Department of Corrections' custody pending the resolution of his federal habeas Petition (Doc. 9). On February 9, 2023, Respondents responded in opposition, arguing: (1) this Court does not have rule-based or court-created authority to release a habeas petitioner, and (2) Petitioner has failed to demonstrate that his case presents “special circumstances” to support his request for release. (Doc. 19 at 1.) On February 24, 2023, Petitioner filed a Reply (Doc. 21), and the motion is now ripe.
ANALYSIS: HABEAS PETITION
I. Applicable Law
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Standard of Review
1. Exhaustion
To seek federal habeas review, a state prisoner must also exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them “in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995); and O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Date v. Schriro, 619 F.Supp.2d 736, 762 (D. Ariz. 2008) (quoting O'Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires the Court to engage in a two-prong analysis. First, the Court must consider whether the petitioner invoked “one complete round” of the state's established review process for any claim raised on federal habeas review. See O'Sullivan, 526 U.S. at 845. The Court then must determine whether the petitioner pled the federal nature of the claim with “considerable specificity” before the state courts. See Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005); see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding “[a] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.”) (internal citations omitted).
a. Proper Forum
“To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by ‘fairly presenting' them to the state's ‘highest' court in a procedurally appropriate manner.” Date, 619 F.Supp.2d at 762 (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989); and Baldwin, 541 U.S. at 29). In non-capital cases arising in Arizona, the “highest court” requirement is satisfied by fair presentation to the Arizona Court of Appeals. Date, 619 F.Supp.2d at 762 (discussing Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); and Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). The Ninth Circuit in Swoopes held “Arizona has declared that its ‘complete round' [of appellate review] does not include discretionary review before the Arizona Supreme Court.” 196 F.3d at 1010 (clarifying the holding in O'Sullivan requiring a petitioner to invoke “one complete round” of a state's established appellate review process). Thus, claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes, 196 F.3d at 1010.
b. Specificity of Federal Basis
In addition to presenting his claims to the proper court, a state prisoner must fairly present his claims to the state court by describing both the operative facts and the federal legal theory on which his claims are based. See Date, 619 F.Supp.2d at 764; Baldwin, 541 U.S. at 33; Duncan, 513 U.S. at 365-66 (holding petitioners must fairly present federal claims to state courts in order to give the State the “opportunity to pass upon and correct” alleged violations of federal rights, which requires petitioners to alert the state courts that they are asserting claims under the federal Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
A claim is not fairly presented to the state court if that court “must read beyond a petition or a brief.. .that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Full and fair presentation requires a petitioner to “present the substance of his claim to the state courts, including reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); see also Picard, 404 U.S. at 278 (holding fair presentation of a claim in state courts requires petitioners to present the state courts with the “substantial equivalent” of the claim raised in federal court).
In the Ninth Circuit, petitioners “must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law. While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makes that explicit reference even if the petitioner relies predominantly on state law before the state courts.” Insyxiengmay, 403 F.3d at 668.
2. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas petitioner's claims may be precluded from federal review in either of two ways.” Date, 619 F.Supp.2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was actually raised in state court but found by that court to be defaulted on state procedural grounds,” or (2) “a state prisoner failed to present his federal claims to the state court, but returning to state court would be ‘futile' because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims.” Id. (internal citations omitted). “Technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy. Id. at 766. Federal courts are barred from reviewing claims that were decided on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. at 729.
If a petitioner failed to exhaust his claim and is now procedurally barred from returning to state court to present his claim, then his claim is procedurally defaulted and barred from federal habeas corpus review. See Coleman, 501 U.S. at 735 n.1. A petitioner can overcome procedural default, and thus bar of his claim, only by showing cause for the default and resulting prejudice or that a fundamental miscarriage of justice will result from the denial. Id. at 750. To show a “fundamental miscarriage of justice,” a petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations and citations omitted). Under this standard, “actual innocence” means “factual innocence, not mere legal insufficiency.” Id.
II. Analysis of Petitioner's Claims
A. Ground One
1. Petitioner's Claim
In Ground One, Petitioner contends the limiting instruction given to the jury violated his Fifth and Fourteenth Amendment rights. (Doc. 9 at 6.) He argues the limiting instruction was a violation of “due process,” and “pursuant to the judgment of state court[,] Petitioner is in custody in violation of the Constitution or laws or treaties of the United States.” (Id.) No additional facts are asserted. (Id.)
A similar claim was argued for the first time in Petitioner's September 3, 2021, petition for review to the Arizona Court of Appeals (Doc. 16-2, Exh. Z) but was not raised in his initial Petition for Post-Conviction Relief before the Superior Court. (Doc. 16-2, Exh. O.) On petition for review, Petitioner argued the limiting instruction should not have been given as it was prejudicial. (Doc. 16-2, Exh. Z, at 91.) The Arizona Court of Appeals granted review but denied relief, finding Petitioner failed to show an abuse of discretion. (Doc. 16-3, Exh. HH.) No further analysis or discussion followed. (Id.) Petitioner raised the same argument in his petition for review to the Arizona Supreme Court. (Doc. 16-3, Exh. II, at 20.) That court denied review without additional comment. (Doc. 16-3, Exh. JJ.)
2. Analysis
Petitioner failed to properly exhaust his Ground One habeas claim in the state courts. Although Petitioner raised this claim in a procedurally correct manner, he failed to specify the federal basis of the claim in the state courts, as required. See Rose, 395 F.3d at 1110; Insyxiengmay, 403 F.3d at 668. In Arizona, a petition for review to the state supreme court is not part of a defendant's right to appeal, therefore, Petitioner's claim was raised in a “procedurally appropriate manner” once the Arizona Court of Appeals ruled on the claim. See Moreno v. Gonzalez, 192 Ariz. 131, 134 (Ariz. 1984) (holding a petition for review from the Arizona Court of Appeals is not part of a defendant's right to appeal); Swoopes, 196 F.3d at 1010 (holding claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”); Pacheco v. Ryan, 2016 WL 7407242 at *4-5 (D. Ariz. Dec. 22, 2016) (finding a claim was raised in a procedurally appropriate manner even though the petitioner failed to present the claim in his of-right PCR petition before presenting it to the Arizona Court of Appeals in his petition for review).
Respondents argue Petitioner has not exhausted this claim in the state courts because he failed to plead it in a “procedurally correct manner.” (Doc. 16 at 12.) Respondents rely on O'Sullivan, 526 U.S. at 845; Castille, 489 U.S. at 351; and Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004). (Doc. 16 at 12.) In O'Sullivan, a petitioner did not seek review of his constitutional claims in his petition for review before the state supreme court. 526 U.S. at 848. The Supreme Court held that a claim has not been properly presented to the state courts when a petitioner fails to present his claims in a petition for discretionary review to a state court of last resort. Id. Here, Respondents do not argue that Petitioner failed to raise his claim before the state court of last resort, but rather that he did not raise it on his first opportunity before the PCR court. (Doc. 16 at 12.) As discussed, supra, Petitioner raised this claim to the Arizona Court of Appeals, the last court in which he was required to pursue his claim. See Pacheco, 2016 WL 7407242 at *5; Swoopes, 196 F.3d at 1010.
Further, the Supreme Court in Castille held that a claim was not fairly presented where “it was raised for the first time on discretionary review to the state's highest court and denied without comment.” Casey, 386 F.3d at 916 (analyzing Castille, 489 U.S. at 351). Similarly, in Casey, the petitioner's claim was raised for the first time to the state's supreme court, which in turn “denied the petition without comment.” Casey, 386 F.3d at 904. Ninth Circuit precedent is clear, when a state's highest court indicates it has reviewed a petition before denying it without further reasoning, it is a decision on the merits. See Chambers v. McDaniel, 549 F.3d 1191, 1196 (9th Cir. 2008) (finding the Nevada Supreme Court's order of denial as having been made on the merits when stating only in its order that it had “considered” all materials filed and “concluded” relief was not warranted).
The Arizona Court of Appeals decided Petitioner's petition for review when it denied the petition. The court's order was brief and only stated: “We have reviewed the record in this matter, the superior court's order denying the petition for post-conviction relief, and the petition for review. We find that [Petitioner has not established an abuse of discretion. We grant review and deny relief.” (Doc. 16-3, Exh. HH, at 2.) Under controlling case law, this Court must assume that because the Arizona Court of Appeals did not state relief was denied based on any state-law procedural grounds, and because it did not deny the petition without opinion, it must have considered the merits of Petitioner's claims presented to it. See Chambers, 549 F.3d at 1197 (holding unless a court expressly states that it is relying upon a procedural bar, the federal court must construe an ambiguous state court response as acting on the merits of a claim, if plausible). Here, the court of appeals stated in its order that it reviewed the record and concluded that Petitioner did not establish an abuse of discretion. (Doc. 16-3, Exh. HH, at 2.) Under Ninth Circuit precedent, this Court concludes the court of appeals' order denying Petitioner's petition for review was a denial on the merits. Thus, Respondents' reliance on O'Sullivan, Castille, and Casey is misplaced.
The Court's analysis, however, does not end there. For Petitioner to have properly exhausted this ground in state court, he was required to specify the federal basis of the claim to the Arizona Court of Appeals. See Rose, 395 F.3d at 1110; Insyxiengmay, 403 F.3d at 668. Petitioner's petition for review failed to cite any state or federal case law as the basis for his claim and failed to present a federal constitutional analysis or theory to support his arguments. Thus, Petitioner failed to fairly present Ground One as a federal claim in state court. See Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (holding fair presentment of a federal claim in state court requires a petitioner to alert the state courts to the fact that he is asserting a claim under the United States Constitution).
Petitioner was required to allege the same claim in the Arizona courts as he raises here. Because any attempt to properly exhaust this federal habeas claim by returning to state court would be futile, as the claims are barred by Arizona's procedural rules, Petitioner has procedurally defaulted this claim. See Date, 619 F.Supp.2d at 765-66; see also Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (stating under Arizona's preclusion rule, petitioners generally are barred from raising any claim that was: (1) finally adjudicated on the merits in an appeal or in any previous PCR proceeding, or (2) waived at trial, on appeal, or in any previous collateral proceeding) (citing Ariz. R. Crim. P. 32.2(a)(2), (3)). As discussed, supra, Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will result from the denial. See Coleman, 501 U.S. at 750.
Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits. Therefore, Ground One is not reviewable by this Court.
B. Ground Two
1. Petitioner's Claim
In Ground Two, Petitioner contends the trial court's limiting instruction to the jury regarding his status as an inmate violated due process and his Fifth Amendment right to remain silent. (Doc. 9 at 7.) No additional facts are stated. (Id.)
In Petitioner's petition for review to the Arizona Court of Appeals (Doc. 16-2, Exh. Z), he presented the same claim but did not raise it in his PCR petition before the Superior Court. (Doc. 16-2, Exh. O.) On petition for review, Petitioner argued the limiting instruction violated his right to remain silent, as provided by the Fifth Amendment. (Doc. 16-2, Exh. Z, at 92-93.) The Arizona Court of Appeals granted review but denied relief, finding Petitioner failed to establish an abuse of discretion. (Doc. 16-3, Exh. HH.) No further analysis or discussion followed. (Id.) Petitioner did not argue a violation of his Fifth Amendment right in his petition for review to the Arizona Supreme Court. (Doc. 13-3, Exh. II.)
2. Standard of Review and Analysis
The decision of the Arizona state court was not objectively unreasonable. Though Petitioner did not raise this ground in his initial PCR petition, Petitioner complied with presenting this claim in a procedurally appropriate manner when raising it on review to the Arizona Court of Appeals. See Swoopes, 196 F.3d at 1010. On review, Petitioner specifically raised this claim as a Fifth Amendment violation when he stated: “Pursuant to [F]ifth Amendment right to remain silent.. .[Petitioner] to remain silent and for the court to give this kind of limited instruction.” (Doc. 16-2, Exh. Z, at 92.) As discussed, supra, the Arizona Court of Appeals granted review and denied relief. (Doc. 16-3, Exh. HH, at 2.) The Court must assume, absent the court of appeals' indication it denied relief on state procedural grounds, that the appeals court considered the merits of Petitioner's claims presented to it. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (holding when “a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”).
Petitioner fairly presented the federal basis of this claim to the Arizona Court of Appeals by specifying the alleged violation of his Fifth Amendment right to remain silent, thereby satisfying exhaustion. (Doc. 16-2, Exh. Z, at 92.) Accordingly, in considering the merits of this claim, the Court applies the AEDPA's standard of review to the last reasoned state-court decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021). Under the AEDPA, the Court must defer to a state court's decision on any claim that was adjudicated on the merits unless the decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Noguera, 5 F.4th at 1034 (quoting 28 U.S.C. § 2254(d)). This is a “highly deferential standard for evaluating state-court rulings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).
When a state court's decision is absent an explanation, the “habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 98. Because this claim was not raised in Petitioner's initial PCR petition, the last state court decision is that of the Arizona Court of Appeals. (Doc. 16-3, Exh. HH, at 2.) Thus, it is Petitioner's burden to show that the state court's denial was either: (1) contrary to clearly established federal law; (2) involved an unreasonable application of such law; or (3) was based on an unreasonable determination of the facts in light of the record before the court. Harrington, 562 U.S. at 100 (internal quotations and citations omitted).
Here, Petitioner is unable to establish any prong under 28 U.S.C. § 2254(d). In the instant Petition, Petitioner does not allege the Arizona Court of Appeals' denial was contrary to, or involved an unreasonable application of, federal law, nor does he allege the decision was based on an unreasonable determination of the facts. Petitioner was charged with Promoting Prison Contraband and one element the State had to prove beyond a reasonable doubt was that Petitioner possessed contraband while being confined in a correctional facility. (See Doc. 16-2, Exh. R, at 7-8.) The record further indicates the trial court was concerned with the potential prejudice resulting from the jury learning such information, so a limiting instruction was given to reduce or eliminate potential prejudice against Petitioner. (Id.) The trial court gave the following limiting instruction:
You have heard evidence that the [Petitioner] was an inmate in a correctional facility. This evidence is admitted only for the limited purpose of establishing one of the elements of promoting prison contraband and, therefore, you must consider it only for that limited purpose and not for any other purpose.(Doc. 16-2, Exh. HH, at 8.) Thus, the limiting instruction was given for the benefit of Petitioner and did not violate his Fifth Amendment right to remain silent. Petitioner challenged that ruling to the Arizona Court of Appeals, and he has failed to demonstrate the Court of Appeals' denial of relief was contrary to established federal law, constituted an unreasonable application of such law, or was based on an unreasonable factual determination. Accordingly, Section 2254(d) applies to this claim and the Court recommends that Ground Two be denied.
C. Ground Three
1. Petitioner's Claim
In Ground Three, Petitioner asserts the prosecutor committed prosecutorial misconduct and violated Petitioner's Fifth and Fourteenth Amendment rights by informing the jury in his opening statement that Petitioner was an inmate. (Doc. 9 at 8.) Petitioner states no additional supporting facts. (Id.)
Similarly, to Grounds One and Two, supra, Petitioner presented a similar claim for the first time in his petition for review (Doc. 16-2, Exh. Z) but did not raise it in his PCR petition. (Doc. 16-2, Exh. O.) On review in state court, Petitioner argued the prosecutor's statement informing the jury he was an inmate was prejudicial. (Doc. 16-2, Exh. Z, at 91.) The Arizona Court of Appeals granted review but denied relief, stating only that Petitioner failed to establish an abuse of discretion. (Doc. 16-3, Exh. HH.) Petitioner raised the same claim in his petition for review to the Arizona Supreme Court. (Doc. 16-3, Exh. II, at 20.) That court denied review without comment. (Doc. 16-3, Exh. JJ.)
2. Standard of Review and Analysis
Petitioner failed to properly exhaust his Ground Three habeas claim in the state courts. The same analysis in Ground One, supra, applies here. Petitioner raised this claim in a procedurally correct manner when presenting it to the Arizona Court of Appeals, but he failed to alert the state court to the fact that he was asserting a claim under the federal Constitution. For Petitioner to have properly exhausted this ground in state court, he was required to specify the federal basis of the claim to the Arizona Court of Appeals. See Rose, 395 F.3d at 1110; Insyxiengmay, 403 F.3d at 668. Petitioner's petition for review failed to cite any state or federal case law as the basis for his claim and failed to present a federal constitutional analysis or theory to support his arguments. Thus, Petitioner failed to fairly present Ground Three as a federal claim in state court. See Shumway, 223 F.3d at 987.
Petitioner was required to allege the same claim in the Arizona courts as he raises here. Because any attempt to properly exhaust this federal habeas claim by returning to state court would be futile, Petitioner has procedurally defaulted this claim in the instant Petition. See Date, 619 F.Supp.2d at 765-66; Moreno, 116 F.3d at 410; see also Ariz. R. Crim. P. 32.2(a) (waiver and preclusion). Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits. Therefore, Ground Three is not reviewable by this Court.
D. Ground Four
1. Petitioner's Claim
In Ground Four, Petitioner argues trial counsel was ineffective for not objecting to the limiting instruction, resulting in a violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (Doc. 9 at 9.) Petitioner states no additional supporting facts. (Id.) Petitioner raised this claim in his PCR petition, and the PCR court found Petitioner “failed to state a colorable claim which [would] allow him relief under Rule 32 and no purpose [would] be served by any further proceedings.” (Doc. 16-2, Exh. R, at 9.) After raising the same claim in Petitioner's petition for review, the Superior Court's decision was upheld by the Arizona Court of Appeals. (Doc. 16-3, Exh. HH, at 2.) Thereafter, Petitioner raised the same argument in his petition for review to the Arizona Supreme Court. (Doc. 16-3, Exh. II, at 20.) That court denied review without comment. (Doc. 16-3, Exh. JJ.)
2. Standard of Review
Ineffective assistance of counsel claims are generally analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a habeas petitioner must show: (1) his counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) that the deficient performance prejudiced the petitioner's defense. See Strickland, 466 U.S. at 68788. “The [petitioner] bears the burden of overcoming the strong presumption that counsel performed adequately..,[a]s with deficiency, Strickland places the burden of proving prejudice on the [petitioner], not the government.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010).
With regard to the prejudice prong of the Strickland test, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As defined by the Supreme Court, a reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112. This is a heavy burden for a petitioner to overcome. See Strickland, 466 U.S. at 689 (holding “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'”).
In federal habeas corpus review, the federal court “must apply a ‘doubly deferential' judicial review to a state court's application of the Strickland standard under AEDPA.” Cheney, 614 F.3d at 995. It is Petitioner's burden to show “the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford, 537 U.S. at 25. This Court has discretion to review the two prongs of the Strickland test in any order and need not address both prongs if Petitioner makes an insufficient showing in one. See Strickland, 466 U.S. at 697.
The Court applies the AEDPA's standard of review to the last reasoned state-court decision. Noguera, 5 F.4th at 1034. Accordingly, this Court reviews the PCR court's decision as the last reasoned state court decision to address Petitioner's ineffective assistance of counsel claim.
3. Analysis
The decisions of the Arizona state courts were not objectively unreasonable. Applying the Strickland analysis, the PCR court stated: “[Trial counsel] was not ineffective for not objecting to a jury instruction which was beneficial to the [Petitioner]. Further, the [Petitioner] has not established that the outcome of the trial would have been different had the jury not received the limiting instruction.” (Doc. 16-2, Exh. R, at 8.) The Court concurs with that conclusion.
The record shows Petitioner was charged with Promoting Prison Contraband, and one of the elements that the state was required to prove, beyond a reasonable doubt, was that Petitioner possessed contraband “while being confined in a correctional facility.” (Doc. 16-2, Exh. R, at 7-8.) As discussed, supra, the trial court's limiting instruction was necessary to reduce or eliminate potential prejudice against Petitioner. The record establishes that the limiting instruction was given for the benefit of Petitioner. Thus, trial counsel's decision to not object was in Petitioner's best interest.
Petitioner has failed to show how counsel's performance fell below an objective standard of reasonableness. Petitioner has not proffered any affirmative evidence to suggest that the outcome of the proceeding would have been different had trial counsel chosen to object to the limiting instruction. Therefore, Petitioner is unable to establish counsel's deficient performance and resulting prejudice under Strickland.
Because Petitioner has failed to show that the state courts' rejection of Ground Four is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts, the Court recommends that the claim be denied.
ANALYSIS: MOTION FOR RELEASE
I. Applicable Law
Federal Rules of Appellate Procedure Rule 23 governs the release of a prisoner collaterally attacking a conviction through a habeas petition. See United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (attacking a federal sentence); Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987) (attacking a state court sentence). Under Rule 23, “[w]hile a decision to not release a prisoner is under review, the court or judge rendering the decision.. .may order that the prisoner be.. .released on personal recognizance, with or without surety.” Fed. R. App. Proc. 23(b)(3). By this plain language, the authority to release a prisoner pending habeas review appears to rest with the appellate court, not the district court. See United States v. Carreira, 2016 WL 1047995 (D. Haw. Mar. 10, 2016) (Rule 23 “facially applies only to motions for release filed after the district court has issued a decision on the merits of a habeas petition.”). The law on this question, though, is unsettled.
In In re Roe, the Ninth Circuit declined to resolve whether release may be granted pending a decision by the district court on a habeas petition. 257 F.3d 1077, 1080 (9th Cir. 2001). “Assuming, arguendo, that a district court has the authority to release a state prisoner on bail pending resolution of habeas proceedings,” the petitioner must demonstrate that it is an “extraordinary case involving special circumstances or a high probability of success.” Id. (quoting Landv. Deeds, 878 F.2d 318 (9th Cir. 1989)). “Special circumstances” have been found to include such things as: (1) “a serious deterioration of health while incarcerated, and unusual delay in the appeal process,” and (2) situations where “the sentence was so short that if bail were denied and the habeas petition were eventually granted, the defendant would already have served the sentence.” Salerno v. United States, 878 F.2d 317 (9th Cir. 1989) (health); Landano v. Rafferty, 970 F.2d 1230, 1239 (3rd Cir. 1992) (length of sentence). In Benson v. California, the Ninth Circuit observed that “[t]here are thousands of prisoners confined in state prisons, any of whom, with little assistance from their cell mates, would have no difficulty in drafting a petition for writ of habeas corpus which would allege substantial violations of constitutional rights. We do not propose.. .to open the door to the release of those thousands of prisoners on the basis of mere allegations in their petitions.” 328 F.2d 159, 163 n.2 (9th Cir. 1964).
In light of this case law, the Court considers whether this matter is an extraordinary one, where special circumstances or a high probability of success exists.
II. Analysis
As in Roe, this Court assumes for purposes of resolving the instant Motion it has the authority to release Petitioner. Even making that assumption, and without deciding the issue, the Court finds Petitioner has failed to demonstrate that this is an extraordinary case involving special circumstances or that he has a high probability of success. See Roe, 257 F.3d at 1080 (holding even if a petitioner alleges numerous and serious constitutional violations, such “mere allegations” are not a sufficient ground for release); see also Benson, 328 F.2d at 163 n.2.
In the instant Motion, Petitioner bases release on two broad grounds. First, Petitioner argues the same grounds as stated in his habeas Petition, emphasizing the alleged violation of his Fifth Amendment right. (Doc. 17 at 1.) Second, Petitioner argues he is entitled to release due to his to Maricopa County case, and related Rule 32 proceedings. (Id. at 3.) In opposition to the Motion, Respondents rightly contend that the instant Petition and Motion are related to Mohave County Superior Court case CR 2018-01789, not the Maricopa County case. (Doc. 19 at 2.) Furthermore, Respondents contend Petitioner fails to explain how the Maricopa County case relates to the instant case, why it should result in his immediate release, and regardless, that Petitioner fails to present any facts to support special circumstances exist or that his Petition has a high likelihood of success. (Id. at 23.) In his Reply, Petitioner again argues the violation of his Fifth Amendment right and the limited jury instruction present the “special circumstances” to warrant release. (Doc. 21 at 1-2.) He further maintains that the Maricopa County case and related Rule 32 proceedings serve an additional basis for his release. (Id. at 3.) However, neither Petitioner's Motion (Doc. 17), nor his Reply (Doc. 21), proffer any additional facts or evidence to support his assertion as to why he is entitled to immediate release pursuant to the Mohave County case currently before the Court.
At the time of the offenses of conviction in the habeas Petition, Petitioner was serving a sentence on CR 2012-009266-001 out of Maricopa County Superior Court.
The Court recommends that the Motion be denied as it is not well-taken. First, Petitioner essentially argues that his habeas Petition is meritorious and therefore he should be released. For the reasons discussed in this Report and Recommendation, supra, the Court disagrees. That basis fails. The only other basis for the Motion concerns proceedings in his criminal matter out of Maricopa County Superior Court, but that case is not the subject of these proceedings. Considering this record, Petitioner has failed to demonstrate a “high probability of success.” Further, Petitioner has not presented any facts to support that “special circumstances” exist. Accordingly, the Court recommends that Petitioner's Motion for Release be denied.
Near the end of his Reply, Petitioner included a vague and somewhat cryptic reference to “Rule 10(E)” and stated his “civil action can come back in play.” (Doc. 21 at 4.) The Court surmises this may be a reference to other civil litigation Petitioner has pursued in this Court (and unsuccessfully appealed), but the Court will not engage in speculation or conjecture. The Court's analysis is limited to the case at bar.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in his habeas Petition or Motion for Release. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS THEREFORE RECOMMENDED:
(1) Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 9) be DENIED and DISMISSED WITH PREJUDICE.
(2) Petitioner's Motion for Release (Doc. 17) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This Report and 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure to timely 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 to timely 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.