Opinion
CV-18-0046-TUC-DCB (JR)
01-18-2021
Mickey Wahl, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Petitioner Mickey Wahl, incarcerated at the Arizona State Prison in Yuma, Arizona, has filed a Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), a Supplement to Petition (Doc. 17), and Respondents' Answer (Doc. 26). No reply was filed. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Rateau for Report and Recommendation. Based on the thorough and unrebutted arguments in the Answer, the Magistrate Judge recommends the District Court, after its independent review of the record, deny the Petition.
I. Factual and Procedural Background
A. Trial and Sentencing
On November 1, 2012, the State indicted Wahl for manslaughter, a Class 2 felony, and negligent homicide, a Class 4 felony. Ex. A, p. 1 (Indictment). The Arizona Court of Appeals' decision on direct appeal summarized the circumstances of the crime as follows:
In the fall of 2011, victim S.C. was dating Wahl's former girlfriend,
[Shanda]. [FN1]. After Wahl's breakup with [Shanda], he dated [Jenny], who had previously dated S.C. There was considerable animosity among and between these couples because of their prior relationships with each other. On December 11, 2011, SC and [Shanda] were at a bar. Wahl and [Jenny] later arrived at the bar, but only [Jenny] went inside. [Shanda] and [Jenny] got into a physical altercation and went out to the parking lot where the fight continued.
Wahl intervened, picking up [Jenny] and placing her in the passenger side of her truck. S.C. followed, arguing with Wahl. Wahl got in the driver's side of the truck and at some point, S.C.'s arm became trapped when Wahl rolled up his window. Despite S.C.'s arm being caught in the truck, Wahl started driving away. Initially, SC ran alongside the truck, but eventually his arm loosened from the window and he fell. S.C.'s head was run over by the truck, and he died at the scene. Sheriff's deputies later found Wahl at his home.
In October 2011, Wahl and S.C. had a disagreement at the bar, which resulted in Wahl physically throwing S.C. out of the bar. Wahl and two of the state's witnesses testified about this disagreement. On October 19, 2011, Wahl posted a message on his Facebook page that stated, “Thank you [S.C.], for helping me rid myself of [Shanda], and I owe you a drink, for throwing you out the bar on your face.” He later posted, “I really felt bad, about throwing him so far out the door . . . lmao!” [FN7: “LMAO” is an abbreviation for “laughing my ass off.” Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dicitonary/lmao (last visited Sept. 30, 2015).] Additionally, Wahl texted [Shanda] that he “felt . . . bad about throwing [S.C.] out on his face.”
One of the state's witnesses testified that in November 2011, [Jenny] was banned from the bar after she backed into a car in the parking lot. Wahl texted [Shanda] a vague message about the incident, implying that he knew [Jenny] had hit the car. Additionally, the state introduced earlier Facebook messages between Wahl and [Jenny] that intimated [Jenny] had been banned from the bar even before she hit the other car, but that Wahl and [Jenny] thought it would be “funny” to try to go to the bar anyway, apparently to make [Shanda] angry.
Eyewitness [Victor Pallanes] testified that S.C. had approached Wahl in the truck, and the two of them began fighting. S.C.'s arm was then pinned in Wahl's rolled-up window while Wahl drove off, speeding up to the point where S.C. could no long[er] run next to the truck. S.C. eventually fell and was run over by the truck, and Wahl did not stop. Testimony by several other witnesses and evidence of Wahl's Facebook and text message history established Wahl did not like S.C. because he had dated [Shanda], and that they had a disagreement months earlier.State v. Wahl, No. 2 CA-CR 2014-0138, 2015 WL 6687551 (Ariz. App. Oct. 30, 2015); Ex. J, ¶¶ 2-3, 10, 12, 38. After a ten-day jury trial, Wahl was convicted of manslaughter and sentenced to a presumptive prison term of 10.5 years. Exs. C, D.
Footnote 1 to the decision states that the Court of Appeals “identified two of the state's witnesses, [Shanda] and [Jenny], by pseudonyms rather than initials for ease of reference.” However, to be consistent with the briefing and transcripts, Respondents refer to them by their names, Shanda Woolf and Jenny Meza, respectively. The Court will do the same.
B. Direct Appeal
A timely notice of appeal was filed on April 17, 2014. Ex. G. In this direct appeal, Wahl argued the state trial court erred by denying his motion to preclude the State from introducing other act evidence-specifically, text messages and Facebook posts-under Rule 404(b) of the Arizona Rules of Evidence, and by denying his new trial motion. Ex. G, pp. 15-22, 41-43. He also asserted numerous claims of prosecutorial misconduct and challenged the sufficiency of the evidence on state law grounds. Id., pp. 23-42, 43-46. In a decision filed on October 30, 2015, the Arizona Court of Appeals rejected Wahl's arguments and affirmed his conviction and sentence. Ex. J. Wahl did not petition the Arizona Supreme Court for review. Ex. K (Court of Appeals Mandate).
C. Post-Conviction Relief
Wahl filed a notice of post-conviction relief, ex. K, and in a petition filed December 1, 2016, Wahl, through counsel, alleged his trial counsel rendered ineffective assistance because he failed to have swabs taken from his truck's left rear tire tested for the presence or absence of blood and/or DNA. Ex. M, pp. 20-25. Post-trial tests showed no blood on the swab from the tire that had run over victim S.C. Id., pp. 24-25. Wahl argued that these results would directly contradict the testimony of Victor Pallanes that Wahl drove over S.C.'s head and would corroborate his own testimony that S.C. assaulted him through the truck's open window. Id.
In response to Wahl's contentions, the State pointed out that on the night of the offenses, it had rained and snowed, the roads were wet, that police found Wahl's truck parked in a puddle on a wet driveway. Ex. N. The State argued that the potential absence of blood on swabs taken from the tires of Wahl's truck “could have easily explained away” by the effects of the wet weather. Id., pp. 4-5. The trial court found that Wahl had not presented a colorable claim of ineffective assistance of trial counsel and dismissed the petition without a hearing. Ex. O.
Wahl petitioned the Arizona Court of Appeals for review, contending that the trial court abused its discretion by not granting a hearing on his claim of ineffective assistance of counsel. Ex. P. The appellate court granted review, examined Wahl's claim and found it was not colorable, and denied relief. Ex. Q.
D. Habeas Petition
On January 29, 2018, Wahl filed his original Petition. Doc. 1. In Grounds One of through Ten and Thirteen of the petition, Wahl alleges that his trial counsel was ineffective. In Ground Eleven he alleges that his rights to due process were violated based on prosecutorial misconduct. In Ground Twelve he contends that the evidence at trial was insufficient to support his conviction.
On January 29, 2019, exactly one-year after the filing of the original Petition, Wahl, through counsel, filed a Supplement to Petition for Writ of Habeas Corpus. Doc. 17. The Supplement contains no additional enumerated claims, but contends that Wahl's conviction was a “miscarriage of justice” and that the case “never should have been charged.”
II. Exhaustion and Procedural Default
Respondents contend that Wahl's Ground Twelve due process claim and his Ground Thirteen IAC claim and are exhausted but do not merit relief under Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Respondents also contend that none of Wahl's other IAC claims, which are admittedly unexhausted, are “substantial” pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and are therefore defaulted and not subject to review. The Court agrees.
A. Exhaustion and Procedural Default
A state prisoner must exhaust his available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. § 2254(b)(1) & (c); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir. 1999). “[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted).
Exhaustion requires that a habeas petitioner present the substance of his claims to the state courts in order to give them a “fair opportunity to act” upon these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32,” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), and then present his claims to the Arizona Court of Appeals, see Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted and not subject to federal review if it was raised in the state court but found to be defaulted on state law grounds. Coleman v. Thompson, 501 U.S. 722, 729730 (1991). Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred.” Id. at 735 n. 1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998).
Other than the IAC claim in Ground Thirteen, Wahl did not raise his IAC claims in either the trial court or the Arizona Court of Appeals, a fact that Wahl concedes in his Petition. Doc. 1, Memorandum, pp. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15. Wahl does not contend, nor could he, that the IAC claim that he did raise in the state courts, related to his counsel's alleged failure to investigate and evaluate blood evidence, could satisfy the fair presentment and exhaustion requirements. See Kelly v. Small, 315 F.3d 1063, 1068 (9th Cir. 2003) (finding IAC claims unexhausted because specific instances alleged in federal petition were not included in the IAC claim raised in state court), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). If Wahl were to now return to state court to litigate the other IAC claims he raises in the Petition, the claims would be found to be waived and untimely under Rules 32.2(a)(3) and 32.4(b)(3) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. See Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Wahl's claims are therefore technically exhausted but procedurally defaulted.
B. Cause and Prejudice
Wahl alleges that his PCR counsel was ineffective by failing to properly present his ineffective assistance of trial counsel claims and, therefore, the procedural default of the IAC claims should be excused under Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the Supreme Court held that, in collateral proceedings that provide the first occasion to raise a claim of ineffective assistance at trial, ineffective assistance of post-conviction counsel in that proceeding may establish cause for a prisoner's procedural default of such a claim. Martinez, 566 U.S. at 9. To satisfy Martinez, Wahl must show (1) the underlying ineffective assistance of counsel claim is “substantial;” (2) the petitioner was not represented or had ineffective counsel during the PCR proceeding; (3) the state PCR proceeding was the initial review proceeding for the IAC claim; and (4) state law required the petitioner to bring that claim in the initial review collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013). There is no dispute that elements 3 and 4 of the inquiry are satisfied here. Thus, Wahl must establish that the claims were “substantial” and that his PCR counsel was ineffective.
To show that the underlying IAC claim is “substantial,” Wahl must show that it has some merit. Martinez, 566 U.S. at 15 (noting that a claim is not substantial if it has no merit, is “wholly without factual support,” or counsel's performance was not below constitutional standards). A claim is substantial if “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013). The Ninth Circuit recently warned that when a district court considers Martinez's prejudice prong, it must be careful not to “collapse[] what should [be] a two-step process: first decide whether the procedural default is excused, and if so, then address the claim squarely, after allowing a chance for any necessary record or evidentiary development.” Ramirez v. Ryan, 937 F.3d 1230, 1242, n. 7 (2019).
The Court must therefore undertake a “general assessment of the merits” of Wahl's unexhausted IAC claims. The Sixth Amendment to the United States Constitution provides that a criminal defendant has a right to the effective assistance of counsel in his defense. The operative legal standard applicable to claims of ineffective assistance of counsel was addressed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The standards enunciated in Strickland are applied unless there is other Supreme Court precedent directly on point. See Wright v. Van Patten, 552 U.S. 120 (2008). Under Strickland, Wahl must show both deficient performance and prejudice in order to establish that his counsels' representation was ineffective. Strickland, 466 U.S. at 687. Deficient performance is established by a petitioner's showing that counsel's performance fell below an objective standard of reasonableness. See Hill v. Lockhart, 474 U.S. 52, 57 (1985) (citing Strickland, 466 U.S. at 688). The court's evaluation of counsel's performance must be “highly deferential” and must avoid “the distorting effects of hindsight” by analyzing the challenged decision from counsel's perspective at the time. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. To establish prejudice, the 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. Lafler v. Cooper, 566 U.S. 156, 163 (2012) (citing Strickland, 466 U.S. at 694).
1. Ground One
In Ground One, Wahl alleges that his trial counsel was ineffective in failing to object to prosecutorial misconduct or to move for a mistrial “because there was no evidence that [Wahl] ran over [S.C.].” Doc. 1, pp. 6-6E.
In Arizona, “[t]o prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process'” State v. Hughes, 969 P.2d 1184, 1191 (Ariz. 1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “Prosecutorial misconduct constitutes reversible error only if (1) misconduct exists and (2) “a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'” State v. Morris, 160 P.3d 203, 214 (Ariz. 2007) (quoting State v. Anderson, 111 P.3d 369, 382 (Ariz. 2005)).
Wahl contends that the prosecutor committed misconduct in eliciting testimony about the possible presence of blood on the driver's side rear tire of the truck he was driving on the night of S.C.'s death. In support of his argument, he cites to the trial testimony of Criminalist Stacie Raymond-Bednarz. On direct examination by the prosecutor, the following exchange occurred:
Q: All right. Let me ask you this. You had samples from the tires, correct - or the tire, correct?
A: Yes.
Q: Did you test those?
A: No.
Q: Why didn't you test those?
A: Well, my job as a DNA analyst is to determine the source of that cellular material, so where did the blood come from, where did the skin cells come from and so forth. In that particular case it wouldn't have been probative to test those swabs because the case documentation I had indicated that [victim S.C.] suffered injuries where he was injured by the right - the rear driver's side tire. And those swabs were from the tire, and I believe there were blood on them. So the source of the DNA would not be probative because it's already known.
Q: All right. And in your job do the defense attorneys ever request that
you analyze certain items?
A: Yes.
Q: Did they make any such request on this case for those swabs from the tires?
DEFENSE COUNSEL: Objection, your honor, not relevant.
THE COURT: Overruled.
A: To my knowledge they did not make a request.Ex. V, pp. 77-78.
On cross-examination of Criminalist Raymond-Bednarz by defense counsel, the following exchange occurred:
Q: So did you talk to anybody in determining your conclusion that you didn't have to analyze those swabs?
A: Which swabs are you referring to?
Q: The one from the tire you just mentioned.
A: Actually, yes, I had a conversation with the prosecutor, Ms. Zucco, and were discussed which swabs to test and which would be most probative for the case.
Q: So she's the one who told you that there was already blood on the tires and you didn't need to do that?
A: Well, I don't have documentation of that. I have documentation of the alleged events that occurred. And I chose which samples to test, along with the prosecutor indicating which ones she would like tested.
Q: So the prosecutor had input into your conclusion that you didn't need to test those swabs from the tire?
A: Yes.Ex. V, pp. 78-79.
On redirect, the following exchange occurred between the prosecutor and the criminalist:
Q: And when we spoke did we speak about the fact that there was some issue about the window? Correct?
A: Yes.
Q: But there was no issue about whether or not he had run over his head with the tire?
A: Correct.
Q: And there was blood on the swabs?
A: Those swabs were never requested by the lab for either serology - so no blood testing was done, or no DNA typing was done. So I don't know if there was blood on there or not.Ex. V, p. 79.
In support of the prosecutorial misconduct claim, Wahl also quotes the testimony of Officer Ursula Ritchie, which he mistakenly attributes to another witness, Dr. Gregory Hess. Doc. 1, p. 6C. At trial, Officer Ritchie, who was being examined by the prosecutor, was asked to identify a photograph of a tire:
Q: And what is [Exhibit] 141?
A: 141 shows, it's the, it's the outer left rear tire. And it shows a disturbance on the outside of the tire, like a swipe or, which was marked, and a swab was taken from there as well.
THE COURT: Yeah, but it appeared to be what?
A: A, like a swipe of some sort, something rubbed against it.
THE COURT: Right. Thank you.
Q: Thank you. From the side?
A: On the side wall of the tire.
Q: Right. But what is on the top of the tire?
A: Again, mud and dirt and little rocks.Ex. V, pp. 157-58.
Based on the quoted testimony, Wahl contends that his counsel was ineffective because he did not object to the prosecutor's “misleading the jury [about the presence of blood on the tire] and prosecutorial misconduct.” Doc. 1, p. 6B-6C. However, as Respondents contend, a close examination of the testimony shows that in each case, the prosecutor asked questions of the witnesses that cannot be fairly characterized as misleading. The prosecutor asked Criminalist Raymond-Bednarz why she had not tested the swabs from the tire and she stated that, although she believed there was blood on the swabs, she did not test them because the source of any DNA would not have been probative because it was already known. Thus, it was the answer from the criminalist, and not the question from the prosecutor, who raised the possibility that there was blood on the tire swabs. Moreover, the criminalist ultimately testified that she did not know whether there was blood on the swabs because they had not been tested. Defense counsel effectively used this fact to Wahl's advantage in his closing argument, arguing that there was no DNA or blood evidence that showed the truck was involved in S.C.'s death. Ex. DD, p. 11.
Wahl also argues that “[t]he prosecutor's comment that there was blood on the swabs from the tire of [Wahl's] truck bolstered the credibility of state witnesses . . . who testified that they [had] seen [Wahl] run over [S.C.'s] head with the rear tire.” Ex. 1, p. 6D. The transcript does not support Wahl's contention. The only time the prosecutor mentions the presence of blood on the swabs was when she stated to the criminalist “And there was blood on the swabs?” Ex. V, p. 79. The criminalist responded that she did not know if there was blood on the tire swabs because they were never tested. So, rather than leaving the jury with the impression that there was blood on the swabs, the prosecutor's question, coupled with the criminalist's answer, made clear that it was unknown if blood was present on the swabs. This argument is therefore meritless.
As for Officer Richie's testimony, Wahl does not identify what it was that the prosecutor asked that allegedly amounted to misconduct. The officer merely described the tire as having a swipe mark on it and with debris on top the of tire. It is not apparent to the Court how the questions asked of the officer might mislead the jury or amount to prosecutorial misconduct. As such, Wahl has failed to establish the merit of his claim that the prosecutor misled the jury in relation to the blood evidence.
Wahl next contends that trial counsel was ineffective by failing to move for a mistrial “because there was no forensic evidence that [he] ran over [the victim].” Doc. 1, p. 6B. Wahl cites no authority for the proposition that the prosecution is obligated to present forensic evidence of guilt. Moreover, as Respondents note, forensic evidence was presented through the testimony of Gregory Hess, M.D., a forensic pathologist and the Chief Medical Examiner in Pima County. Ex. V, p. 126. Dr. Hess testified that he reviewed the victim's autopsy report which stated that the cause of death was listed as “cranial cerebral injuries from being run over by a motor vehicle.” Ex. V, p. 128. That testimony was supported by the testimony of eyewitness Victor Pallanes, who testified that he watched as Wahl drove off in his truck with S.C.'s arm pinned in the window, watched S.C. running to keep up with the truck, then watched S.C.'s arm release from the window and then watched as S.C.'s head was crushed under the rear tire of Wahl's truck. Ex. UU, pp. 21-24. With this evidence, there was no basis for Wahl's counsel to move for a mistrial and there is no merit to this claim.
2. Ground Two
Wahl's underlying claim of ineffective assistance of counsel in Ground Two is his trial counsel's alleged failure to request adequate self-defense jury instructions. Doc. 1, pp. 7A-7F. Wahl contends that his counsel failed to request a definition of “unlawful physical force” that included specific definitions for “endangerment,” “threatening and intimidation,” “assault,” and “aggravated assault.” Id., p. 7C. Relying on State v. Fish, 213 P.3d 258 (App. 2009), Wahl argues that “the absence of these instructions allows the jury to speculate about the victim[‘]s behavior and would allow the jury to completely disregard all the self-defense evidence.” Doc. 1, p. 7D. However, there are factual differences between Fish and Wahl's case that render Wahl's claim insufficient to merit further review.
In Fish, the defendant was hiking in a remote wooded area when the victim's two barking and growling dogs ran toward him. 213 P.3d at 261-62. The defendant fired a warning shot into the ground to scare the dogs and the victim responded by yelling threats while running toward the defendant “with his eyes crossed and looking crazy and enraged ....” Id. at 262. Claiming he feared for his life, the defendant shot and killed the victim. Id. at 258. At trial, the defendant argued that he acted in self-defense, but the jury found him guilty of second-degree murder. Id. at 262-63. The defendant appealed his conviction and the Arizona Court of Appeals held that the trial court should have granted the defendant's request that the jury be instructed that, in relation to self-defense, the term “unlawful physical force” included the statutory elements of endangerment, threatening or intimidating, and aggravated assault. Id. at 278. The appeals court agreed that the requested instructions should have been provided because “[t]he jury could have concluded that the Victim's advances toward Defendant did not rise to the level of unlawful conduct, not realizing that the Victim could have committed an aggravated assault without ever making contact with the Defendant.” Id.
Unlike Fish, where there was no physical contact between the victim and the defendant, the instructions here could not be interpreted in a manner that would cause the jury to disregard the self-defense evidence presented during the trial. See State v. Sterkeson, No. 1 CA-CR 09-0058, 2010 WL 877504 (Ariz. App. Mar. 11, 2010) (“Fish is not controlling here, where it is undisputed [that the victim] and Defendant physically fought with each other.”). In this case, there was testimony that S.C. and Wahl were engaged in a physical fight before Wahl got in the truck and attempted to drive away. Ex. U. pp. 17980, 190-91 (Testimony of bartender Helen Nieson). There was also testimony that S.C. struck others during the fight. Ex. Z, p. 24 (Testimony of Dannie Lynn Bowling). Testimony also supported Wahl's contention that S.C. jumped onto the truck and was trying to hit him through the window. Ex. U, pp. 182, 187. Considering this testimony, the Fish court's concern that the jury might not realize that the victim “could have committed an aggravated assault without ever making contact with the Defendant” did not exist.
However, even though the factual underpinnings of Fish distinguish it from Wahl's case, the claim is not “wholly without factual support.” Martinez, 566 U.S. at 15. Surely it would not have hurt Wahl's case if his lawyer had requested definitions of “unlawful physical force” that allowed the jury to conclude that S.C. had committed an aggravated assault without ever making physical contact with Wahl. Because the claim has some merit, it is considered on the merits below. See Ramirez, 937 F.3d at 1242, n. 7.
3. Ground Three
Wahl next contends that PCR counsel was ineffective in failing to raise an IAC against trial counsel for failure to request a jury instruction pursuant to State v. Willits, 393 P.2d 274, 279 (Ariz. 1964). When the police negligently lost, destroyed, or failed to preserve potentially exculpatory evidence, a Willits instruction permits the jury to infer that the evidence would have been exculpatory. State v. Fulminante, 975 P.2d 75, 93 (Ariz. 1999).
Here, Wahl contends that the police failed to check vehicles belonging to Shanda and witness Arthur Griffin for S.C.'s blood or DNA, and that the evidence would have supported his theories that either or both of them may have struck and killed S.C. Doc. 1, pp. 8A-8F. Wahl would be entitled to a Willits instruction in relation to this alleged oversight if he could show that “(1) the state failed to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice.” State v. Hernandez, 474 P.3d 1191, 1194 (Ariz. 2020) (citing State v. Glissendorf, 329 P.3d 1049, 1052 (Ariz. 2014)). Wahl does not contend that the State lost or destroyed evidence, but that it failed to collect blood and DNA evidence from Shanda and Griffin's vehicles. Under Arizona law, it is well settled that “the State does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence,” State v. Rivera, 733 P.2d 1090, 1094-95 (Ariz. 1987), “nor does it have a duty to gather evidence for a defendant to use in establishing a defense, Hernandez, 474 P.3d at 1195 (citations omitted).
Wahl contends that the State's duty to collect evidence from Shanda and Griffin's vehicles was prompted by testimony from Shanda's father that he “believed” that he saw S.C.'s truck in the bar parking lot after his death, Griffin's testimony that he did not see a fight or anyone by S.C.'s body when he came upon it, and his own testimony that he “thought that [he] recognized the sound of Shanda's vehicle outside of his house shortly after he returned home, but did not see the vehicle.” According to Wahl, this testimony “supported the theory that Victor and Shanda followed him home, a mere few seconds behind,” and “may have hit [S.C.] chasing after him.” Doc. 1, p. 8C. Because there was eyewitness testimony indicating that Wahl had run over S.C.'s head and there was no direct evidence supporting Wahl's version of events, Wahl's equivocal contention that Victor or Shanda “may have hit [S.C.]” amounts to pure speculation. Arizona cases make it clear that speculation of this sort is insufficient to support a Willits instruction. See Fulminante, 975 P.2d at 93 (evidence defendant claimed might have supported his alibi was “highly questionable at best” due to contrary witness testimony; trial court did not abuse its discretion in refusing to give Willits instruction); State v. Dunlap, 930 P.2d 518, 541 (Ariz. App. 1996) (Willits instruction not available to defendant because claim that missing evidence would have supported his theory of case was “entirely speculative”). Additionally, the State was not obligated to conduct the forensic tests Wahl requests when there was no apparent reason to do so. See State v. Tyler, 718 P.2d 214, 219 (Ariz. App.1986) (no entitlement to Willits instruction because officer “had no reason to know what the defendant's defense would be”); State v. Willcoxson, 751 P.2d 1385, 1388 (Ariz. App. 1987) (“failure to pursue every lead or gather every conceivable bit of physical evidence” does not require Willits instruction).
Wahl also cites a pretrial interview between a defense investigator and a bartender where the bartender said that Griffin told her that “he almost ran over [S.C.] again” when he came upon him. Doc. 1, p. 8A. Wahl apparently interprets that statement and indicating that Griffin had already run over S.C. and almost did it again. That conclusion is not supported by the record. No witness testified at trial that Griffin had struck S.C. and Griffin testified that while driving home from the bar he came upon “a person laying in the road.” Ex. Z, pp. 5-6. He got out and checked on the man, found that he did not appear to be breathing, and walked back to the bar and told the bartender to “call the cops.” Ex. Z, pp. 6-8. He expressly denied running over the body. Ex. Z, p. 8. Two investigating officers found no reason to investigate Griffin. Ex. W, p. 14 (Deputy Kartchner); pp. 46-47 (Officer Deskins). Thus, Griffin's alleged comment did not require the State to investigate whether other vehicles may have run over S.C. and did not provide a substantial basis for Wahl's counsel to request a Willits instruction. See State v. Riley, 459 P.3d 66, 91 (Ariz. 2020) (“A party is entitled to any jury instruction reasonably supported by the evidence.”); State v. Burns, 344 P.3d 303, 319 (Ariz. 2015) (same).
4. Ground Four
Wahl contends that PCR counsel ineffectively failed to raise an IAC claim based on trial counsel's failure to raise a Confrontation Clause objection to the State's DNA analyst's testimony that she had “used the results of [another analyst's] tests” in performing her own analysis. Doc. 1, p. 9B. At trial, the State's criminalist testified as follows on direct examination:
Q: Can you tell the jury what is contained in State's Exhibit 126?
A: This is one of my scientific examination reports that - or, sorry - one of Linda Holden's scientific reports dated February 22nd, 2012.
Q: And who is Linda Holden?
A: Linda Holden was a colleague of mine that retired.
Q: And are you able to testify to her results?
A: Yes. In fact, I used her notes prior to my testing and used her notes to examine what she did. And based on her findings and what she did, I did my DNA analysis.
Q: All right. And can you tell us, what did you analyze that contained in that report for this case that we're here to talk about today?
A: There were three items that Linda received and retained portions of, 9705-5, which was a red top tube of blood from [S.C.]. And from that sample of blood she made a blood stain card. So she took a portion of the blood and dried it on a card for future analysis.
The second item is 9705-7, which were five right hand fingernail clippings from [S.C.]. And those she tested for blood and retained in the laboratory.
And, likewise, 9705-8 were five left hand fingernail clippings from [S.C.]. And she tested those for blood and kept them in the laboratory for future DNA analysis.
Q: And were there any findings?
A: She did not detect blood on those fingernail clippings.Ex. V, pp. 75-75. Relying on Bullcoming v. New Mexico, 564 U.S. 647 (2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Wahl contends that the criminalist's reliance on another analysist's report violated his Sixth Amendment right to confront witnesses against him. Doc. 1, p. 9B.
In Bullcoming, the Court addressed the question of “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing testimonial certification-make for the purpose of proving a particular fact-- through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” 546 U.S. at 652. Under the circumstances of that case, the Court held that surrogate testimony, in which one analyst testifies to the findings and accuracy of a report prepared by another analyst, violated Bullcoming's right “to be confronted with the analyst who made the certification.” Id. However, as recognized by Justice Sotomayor in her concurrence, the testifying analyst in Bullcoming had a “total lack of connection to the test at issue.” Id. at 673. This is not such a case.
The testifying analyst here was a colleague of the retired analyst who conducted the blood test at issue. The testifying analyst stated that she had “used [her colleague's] notes prior to testing [ ] and used her notes to examine what she did.” Ex. V, p. 74. She was thus “a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue.” Bullcoming, 546 U.S. at 673 (Sotomayor, J., concurring). Because the testifying analyst offered her own opinion based on her independent review of previous testing, her testimony did not run afoul of Bullcoming. See Williams v. Illinois, 567 U.S. 50, 56, 72 (2012) (plurality opinion); State ex rel. Montgomery v. Karp, 336 P.3d 753, 757 (Ariz. App. 2014). Because the testifying analyst stated that she independently reviewed the notes underlying the examining analyst's conclusions and examined those conclusions, the testifying analyst was the expert witness whom the defendant had the right to confront. Montgomery, 336 P.3d at 757; see also Flournoy v. Small, 681 F.3d 1000, 1002, 1005 (9th Cir. 2012) (noting absence of clearly established federal law, even after Bullcoming, addressing the constitutionality of surrogate testimony from a witness who had performed a “technical review” of the scientific test). In this case, the court allowed Wahl to confront the testifying analyst and his counsel exercised that right.
5. Ground Five
In Ground Five, Wahl asserts another Confrontation Clause violation, contending that his PCR counsel ineffectively failed to raise an IAC claim based on trial counsel's failure to object to the Medical Examiner's testimony about the results of an autopsy report performed by another doctor. The Arizona Supreme Court has repeatedly and uniformly held that “a testifying medical examiner may, consistent with the Confrontation Clause, rely on information in autopsy reports prepared by others as long as he forms his own conclusions.” State v. Dixon, 250 P.3d 1174, 1182 (Ariz. 2011); see also State v. Joseph, 283 P.3d 27, 29 (Ariz. 2012) (“[A] testifying medical examiner may offer an opinion based on an autopsy performed by a non-testifying expert without violating the Confrontation Clause.”); State v. Smith, 159 P.3d 531, 538 (Ariz. 2007) (“Expert testimony that discusses reports and opinions of another is admissible under this rule if the expert reasonably relied on these matters in reaching his own conclusion.”). A testifying expert may not, however, act as a “conduit for another non-testifying expert's opinion.” State v. Lundstrom, 776 P.2d 1067, 1074 (Ariz. 1989). Here, the testifying expert, Gregory Hess, M.D., reviewed the autopsy report, photographs and statements of the prior medical examiner and provided his own conclusions and interpretation of the evidence. Ex. V, pp. 126-141. He was asked if he could determine which side of S.C.'s head was up when he was struck and said he could not. Id., p. 128. He was asked if the photographs were consistent with S.C. being run over by a motor vehicle, and he responded, “Yes.” Id., p. 130. He even notes areas of the examining doctor's report for which he did not find support. Id., p. 133. The nature of Dr. Hess's testimony establishes that there was no violation of the Confrontation Clause.
6. Ground Six
In this ground, Wahl argues that PCR counsel ineffectively failed to raise an IAC claim based on trial counsel's failure to object to rebuttal testimony which Wahl claims misled the jury and led to false inferences about how S.C. died. Wahl points out the Shanda and Pallanes testified that they had seen Wahl's outside rear driver's side tire run over S.C.'s head. Doc. 1, p. 11A. During the defense case, Dannie Lynn Bowling, who had driven Jenny Meza to the bar where Jenny fought with Shanda, testified that Wahl broke up the fight and put Jenny in Bowling's truck to go home. Ex. Z, pp. 18-26. Bowling testified that she and Jenny left the bar, but turned around and drove back toward the bar because Jenny wanted to retrieve her purse. After turning around, Jenny saw Wahl driving in the opposite direction. Ex. Z, pp. 30-32, 41-43. Bowling testified that she did not see anyone hanging of the window of Wahl's truck and did not learn of S.C.'s fall and death until later. Ex. Z, pp. 33-35. On cross-examination by the State, Bowling denied seeing S.C.'s body in the road even though Jenny had testified to the contrary. Ex. Z, pp. 43-44. Bowling accused Jenny of lying about seeing S.C.'s body in the road. Ex. Z, pp. 44-45.
On rebuttal, the State called Cynthia Lynn Boykin, who testified about a conversation she had with Bowling during which Bowling “explained to me everything that she saw and everything that went on the night that [S.C.] was killed.” Ex. AA, p. 73. Boykin described Bowling as “very upset” and “stressed out” and as providing “a distinct description of everything.” Ex. AA, p. 73-74. Bowling told her that she had nightmares about the event and that, “when she closed her eyes, she sees [S.C.'s] body lying under the truck.” Id. Bowling said to Boykin that she had seen S.C. trying to get his stuck arm out of the truck's window. Ex. AA, p. 74. Then she saw S.C.'s left foot “get pulled or jerked” and it “sucked him under the truck.” Id. Bowling's description to Boykin continued, “And when [S.C.] went under the truck, he went under, and then his body flew back over the top of the truck, and [Wahl] ran over him again.” Ex. AA, pp. 75, 79-80, 86.
Wahl complains that the State “did not object to Boykin's testimony, nor did [defense counsel] object to or notify the court of perjury and false testimony.” Doc. 1, p. 11C. He further contends that “it was improper for the prosecutor to propound an inference (in this case that [S.C.] was hit, flew over the truck and was hit a second time) that it knows to be false or has a strong reason to doubt (in this case Victor and Shanda testified to being eyewitnesses and this did not occur, and the forensic pathology does not support Boykin's account).” Doc. 1, p. 11C. Wahl claims that defense counsel's “failure to object to, request a curative instruction, strike the testimony or move for a mistrial, allowed the jury to infer that Jenny Meza was lying to the jury about not seeing [S.C.] get hit and creating strong emotions that [Wahl] had run over [S.C.] twice in a very callous, inhumane way.” Wahl contends that his counsel's failure to object to Boykin's testimony led to his conviction. Doc. 1, p. 11C.
As Respondents contend, however, Boykin's testimony was not improper merely because it was contrary to what Bowling had testified or because it permitted the jury to conclude that Wahl had twice run over S.C. Boykin testified that she was relating to the jury what Bowling had told her about the incident, that she did not know the accuracy of anything Bowling had told her, and that Bowling was “very upset” during their conversation. Ex. AA, pp. 75, 88. Wahl's counsel also effectively cross-examined Boykin about her relationship with S.C.'s family and any potential bias. As is the case in every jury trial, “inconsistencies in witness testimony go not to the admissibility of testimony, but rather to the credibility of the witnesses and the weight to be accorded to the evidence, which are issues for the jury to resolve.” State v. Rivera, 109 P.3d 83, 87 (Ariz. 2005); see also State v. Linden, 64 P.2d 673, 684 (Ariz. App. 1983) (“The inconsistencies in the witnesses' testimonies were apparent. Therefore, the credibility to be given their testimony became a question for the jury.”) (citing State v. Money, 514 P.2d 1014 (Ariz. 1973)).
7. Ground Seven
Wahl contends that PCR counsel was ineffective in failing to raise an IAC claim based on trial counsel's failure to object or request a mistrial when the prosecutor elicited allegedly false testimony that Wahl had been banned from the bar where the crime took place, thereby allowing the jury to infer that he went to the bar “intending to cause trouble.” He asserts that trial counsel's failure to address the issue “led to [his] conviction.” Doc. 1, pp. 12A-12C.
As Respondents correctly note, Wahl's argument fails for several reasons. First, as Wahl points out in the petition, the testimony conflicted about whether he or Jenny Meza had been banned from the bar. Doc. 1, pp. 12A-12(B) (Wahl describing inconsistent testimony on issue from witnesses); Ex. U, pp. 87-88 (Shanda Woolf testifying that both Meza and Wahl were banned from the bar), 143-47 (bar owner Stephen Woolf testifying that Wahl was banned); Ex. Y, pp. 40-44 (bartender Mary Lou Scott testifying that Jenny Meza was banned); Ex. Z, pp. 67-71 (Wahl testifying that neither he nor Meza were banned). The credibility of each of the witnesses and the weight ascribed to their testimony are issues to be resolved by the jury. See Rivera, 109 P.3d at 87; Linden, 64 P.2d at 684. Second, Wahl identifies no evidence demonstrating that the prosecutor knowingly solicited testimony that she knew to be false. See Rivera, 109 P.3d at 88 (“Prosecutors have a duty to the court not to knowingly encourage or present false testimony,” however, “[a]bsent a showing that the prosecution was aware of any false testimony, the credibility of witnesses is for the jury to determine.”). Third, the only evidence that Wahl went into the bar on the night of S.C.'s death came from officers relating what Victor Pallanes had said immediately after the incident. Ex. W, pp. 11, 42. Pallanes did not testify that Wahl went into the bar, ex. U, pp. 13-19, 42-46, and the Arizona Court of Appeals found that “only [Jenny] went inside” the bar, ex. J, p. 2. Fourth, no evidence suggested that Wahl went to the bar to cause trouble. Uncontradicted testimony established that Wahl broke up the fight between Jenny and Shanda by pulling Jenny away from Shanda and ensuring that Jenny left the area. Ex. U, pp. 42-46, 96-97, 104, 107-08; Ex. X, pp. 62-66; Ex. Y, pp. 128-31; Ex. Z, pp. 23-26, 132-48; Ex. AA, pp. 47-48. Given the varied evidence presented at trial, Wahl's contention that his lawyer should have objected or sought a mistrial is without merit and, therefore, cannot operate as cause to excuse Wahl's default of this claim. See Martinez, 566 U.S. at 15.
8. Ground Eight
Wahl argues that PCR counsel should have raised an IAC claim based on trial counsel's failure to hire an accident reconstruction expert despite that trial court's authorization of funds to do so. Doc. 1, pp, 13A-13C. As Respondents contend, and Wahl does not rebut, nothing in the record supports Wahl's assertion that the trial court had approved funding for such an expert or that he had even requested it. Ex. F (trial court docket). The only request for expert funding in the record was for “a forensic examination and analysis of the decedent's body wounds, marks, or abrasions.” Ex. B (Motion to Appoint Expert). In any event, Wahl's claim that counsel should have retained an accident reconstructionist is without merit.
In support of the substance of this claim, Wahl offers an “Analysis of statement and testimony by Victor Pallanes” dated December 26, 2017, that was prepared by Paul Gruen of Topgun Collision Reconstruction. Doc. 1, Ex. 4. As the title suggests, Gruen primarily reviewed the statements and testimony of Pallanes and additionally reviewed photographs and forensic evidence. In the report, Gruen concludes that there were “inconsistencies” in Pallanes' testimony, that the investigators did not analyze “the dynamics of the pickup, the movement of [S.C.'s] body when it fell from the side of the pickup, and [S.C.'s] position in the roadway relative to the passing pickup tire.” Id., pp. 6-7. Gruen's conclusion was that, “[i]n the final analysis, it appears that Mickey Wahl was convicted based solely on unreliable eyewitness testimony and a substandard police investigation.” Gruen added that “[s]hould Mickey Wahl's conviction be overturned, I recommend a full and complete reconstruction of this even to determine what actually occurred to a reasonable degree of scientific and professional certainty.” Id., p. 7.
The report from Wahl's expert points out inconsistencies in the versions of events that Pallanes told different law enforcement personnel and that he related in his testimony at trial. Id., pp. 2-4, 6. Many of the cited conflicts were before the jury. Several different law enforcement witnesses were examined and cross-examined about what Pallanes had told them. Ex. V, pp. 163-65 (Reserve Deputy Ursula Ritchie); Ex. W, pp. 11-12, 16, 2732 (Deputy Jacob Kartchner), 41-44, 58 (Officer Travis Deskins). The evaluation of any inconsistencies in Pallanes' statements and his credibility were jury issues and Wahl leaves unexplained how an expert would have impacted the evaluation. See State v. Cox, 174 P.3d 265, 270 (Ariz. 2017) (“No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury.”) (quoting State v. Clemons, 521 P.2d 987, 988-89 (1974)). Moreover, neither Wahl nor Gruen's report establish that he is an expert on issues affecting the accuracy of eyewitness testimony and, even if qualified as an expert, Gruen's opinions about the credibility of any of the witnesses, including Pallanes, are not admissible under Arizona law. See State v. Forde, 315 P.3d 1200, 1219 (Ariz. 2014) (“while an expert may educate a jury by testifying about behavioral characteristics affecting the accuracy of eyewitness identification, the expert may not usurp the jury's role by offering opinions concerning the accuracy, reliability, or credibility of a particular witness.”) (citations omitted): State v. Hyde, 921 P.2d 655, 679 (Ariz. 1996).
In his report, Gruen is also critical of the police investigation, listing numerous alleged deficiencies. Doc. 1, Ex. 4, pp. 5-6. Gruen largely fails to explain the significance or impact of the alleged deficiencies and entirely omits any opinion that would substantially undermine the factual support for Wahl's conviction. For example, Gruen points out that the police did not document where S.C.'s shoe and sock were found and describes how S.C. might have been pinned in the window. Doc. 1, Ex. 4, pp. 5-6. How these issues might exculpate Wahl is left unexplained. Gruen also appears to focus on whether S.C.'s head was struck by the truck rear outside dual tire. Id. Again, left unexplained is how the mechanism of death would relieve Wahl of responsibility for driving off with S.C.'s arm pinned by the window. On that same point, Gruen sates that the autopsy photos were inconsistent with S.C.'s head being stuck by a tire and that the medical examiner failed to say that S.C.'s head had been his by the truck. Id., p. 5. However, the medical examiner specifically testified that S.C.'s cause of death was “cranial cerebral injuries from being run over by a motor vehicle,” and agreed that autopsy photographs showing S.C.'s head injuries were “consistent with being run over with a motor vehicle.” Ex. V, pp. 127-30, 139-40.
As Respondents contend, nothing the Gruen's report demonstrates that defense counsel's performance was deficient or shows that Wahl was prejudiced by counsel's failure to hire an accident reconstruction expert. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (rejecting appeals court's “nothing to lose” standard for evaluating Strickland claims). Wahl has not established that this claim is substantial under Martinez and his default of the claim is therefore unexcused.
9. Ground Nine
Wahl argues that PCR counsel should have raised an IAC claim based on trial counsel's failure to object when the prosecutor asked Dannie Lynn Bowling and Wahl if other witnesses were lying. Doc. 1, pp. 14A-14C. In Arizona, opinion testimony by one witness commenting on the truthfulness of another witness is generally disfavored. See State v. Boggs, 185 P.3d 111, 121 (Ariz. 2008). However, Arizona courts have declined to categorically prohibit were-they-lying questions. State v. Morales, 10 P.3d 630, 633 (Ariz. App. 2000). “[S]uch questions may be appropriate when the only possible explanation for the inconsistent testimony is deceit or lying or when a defendant has opened the door by testifying about the veracity of other witnesses on direct examination.” Id.
Here, when the prosecutor asked Wahl if he had yelled back at S.C. through the truck's partially opened window, Wahl denied it. Ex. AA, p. 50. The prosecutor then asked Wahl about a discrepancy between his denial and his statement to Detective Adney that he had yelled racial epithets at S.C. Id. Wahl again denied yelling the epithets to S.C. Id. The prosecutor then asked Wahl, “Well, you've heard witnesses like Mr. Stiles say that you were both exchanging pleasantries as he put it, but that's not true?” Id. Wahl answered, “That's not true.” Id. The prosecutor's questioning of Wahl fit squarely within the permissible use of such questions- the only possible explanation for the inconsistent testimony was either Wahl or Stiles was lying. Morales, 10 P.3d at 633. Likewise, the prosecutor's question to Bowling, asking whether Jenny Meza had lied when she said that they had returned to the bar where she had seen S.C.'s body in the road, fits within that appropriate use of this sort of questioning. Ex. Z, pp. 43-45. Either Bowling and Meza returned to the bar or they did not. As Respondents contend, objection to the questions asked by the prosecutor about the inconsistencies of the testimony of Wahl and Bowling with that of other witnesses would have been futile.
Wahl also asserts that defense counsel failed to object to a was-he-mistaken question that the prosecutor asked him about defense witness Borland. Doc. 1, p. 14A. However, the transcript reflects that counsel did object to the prosecutor's question. Ex. AA, p. 14. The prosecutor withdrew the question and the trial court sustained Wahl's counsel's objection. Id.
Trial counsel was not deficient for failing to object to the questioning of Wahl or Bowling and Wahl was not prejudiced by any purported failure to do so. PCR counsel was therefore not ineffective because the claim was not raised. Martinez does not excuse Wahl's procedural default of his Ground Nine claim.
10. Ground Ten
Wahl complains that PCR counsel ineffectively failed to raise an IAC claim based on trial counsel's failure to object to allegedly improper questions during the cross-examination of Bowling that referred to facts outside the record. Specifically, Wahl complains that during cross-examination, the prosecutor asked Bowling about her direct testimony that, after she and Jenny arrived in Wahl's driveway, they immediately started back toward the bar to look for Jenny Meza's purse. Ex. Z, pp. 31-33, 41-42. Bowling testified that they did not get close to the bar before they saw Wahl's truck, turned around again, and went back to Wahl's house. Id., pp. 32-33, 43. The prosecutor then relayed Meza's statement to police in which she said that she had seen S.C.'s body in the roadway in front of the bar and wanted Bowling to stop the truck so that she could get out and check on him. Id., pp. 43-45. Bowling consistently denied any of what Meza had described had happened. Id. The prosecutor then confronted Bowling with her failure to mention that they had turned around for Meza's purse during a pre-trial interview. Id., p. 45. During the interview, Bowling told the prosecutor that she had refused Meza's request to go back for her purse and did not head back toward the bar. Id. Bowling admitted that's what she had said, and the prosecutor ended the cross-examination. Id.
As Respondents contend, the prosecutor was attempting to impeach Bowling with prior inconsistent statements and omissions that she had made during their interview. Impeachment of witnesses by the prior inconsistent statements is allowed by Rule 801(d)(1)(A) of the Arizona Rules of Evidence. State v. Joe, 316 P.3d 615, 617-18 (Ariz. App. 2014); see also State v. Carr, 743 P.2d 1386, 1389 (Ariz. 1987) (“Ariz. R. Evid.801(d)(1)(A) is a broad exception to the hearsay rule. It is based upon a belief that a jury ordinarily should be permitted to consider a prior inconsistent statement in determining credibility.”). Under this authority, any objection to this impeachment would have been overruled by the trial court. Thus, neither trial counsel nor PCR counsel was ineffective for raising this claim and, therefore, the procedural default of the claim is not excused under Martinez.
11. Ground Eleven
Wahl argues numerous instances of prosecutorial misconduct “violated his right to Due Process and a fair trial as guaranteed by Amendments 5 and 14 to the U.S. Constitution.” Doc. 1, p. 16A. Wahl raised this argument as a federal claim in his opening brief on direct appeal. Ex. G, pp. 36-41. Thus, he has properly exhausted this claim, and it will be addressed on its merits. Roettgen, 33 F.3d at 38; Swoopes, 196 F.3d at 1010.
12. Ground Twelve
Wahl argues that insufficient evidence supports his conviction in violation of his Due Process rights under the Fifth and Fourteenth Amendments. Doc. 1, p. 17A. Although he raised a similar insufficiency claim on direct appeal, he based the claim exclusively on state law and did not identify any federal basis for relief. Ex. G, pp. 43-46. The Arizona Court of Appeals was not given the opportunity to rule on a federal due process claim and the claim therefore was not properly exhausted. Baldwin v. Reese, 541 U.S. 27, 29, 33 (2004); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (a state law issue is not transformed into a federal one merely by asserting a violation of due process). Any attempt to return to state court to exhaust this claim would be futile under Rules 32.2 and 32.4(a) of the Arizona Rules of Criminal Procedure. This claim is therefore technically exhausted but procedurally defaulted.
13. Ground Thirteen
Wahl argues that trial counsel “was ineffective for failing to properly investigate and to properly evaluate blood and DNA evidence alleged to have been on the tire of [his] truck.” Doc. 1, p. 18A. Wahl's PCR counsel raised this argument in the trial court and Wahl asserted it in his pro se petition for review to the Arizona Court of Appeals. Exs. M, P. The claim is therefore properly exhausted and will be addressed on its merits. See Swoopes, 196 F.3d at 1010-11.
III. Counsel's Supplemental Petition
Wahl employed counsel to submit a Supplemental Petition in which counsel reargues the state issues raised in Wahl's direct appeal. See Doc. 17. Counsel argues that the state trial court erred in applying the Arizona Rules of Evidence, by denying Wahl's motion for a new trial pursuant to Rule 24 of the Arizona Rules of Criminal Procedure in which Wahl asserted numerus instances of prosecutorial misconduct. Id. Counsel also challenges the sufficiency of the evidence supporting conviction. However, Counsel offers no federal basis for any of the claims. Because federal habeas corpus relief is available only on behalf of a person in custody in violation of the Constitution or laws or treaties of the United States, 28 U.S.C. sec. 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5-6 (2010), and because a state court's interpretation of state law “bind a federal court sitting in habeas corpus, Bradshaw v. Richey, 546 U.S. 74, 76 (2005), none of the claims raised in the Supplemental Petition are cognizable.
IV. Merits
A. AEDPA Standards
Under 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 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. 28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 362, 384-85 (2000). To justify relief, the state court's ruling on a claim must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
In conducting an analysis under AEDPA, the federal habeas court looks to the last reasoned state court decision. Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014). Where there is no reasoned decision from the state's highest court, the District Court “looks through” to the last reasoned state court decision and presumes that the unexplained decision relies on the same reasoning. Ylst v. Nunnemaker, 501 U.S. 63, 73-74 (1991). Where no state court decision provides a basis for the decision, the district court must undertake an independent review of the record and determine whether the state court's decision was objectively reasonable. Castellanos, 766 F.3d at 1145; see also Harrington v. Richter, 562 U.S. 86, 98 (2011). However, a state court need not cite Supreme Court precedent when resolving an issue presented on direct or collateral review. Early v. Packer, 537 U.S. 3, 8 (2002). “[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court] precedent,” the state court decision will not be contrary to” clearly established federal law. Id.
B. Discussion
1. Ground Two
As discussed above, Wahl's underlying claim of ineffective assistance of counsel in Ground Two is his trial counsel's alleged failure to request adequate self-defense jury instructions. Doc. 1, pp. 7A-7F. The legal standard applicable to his claims is a familiar one, addressed by the United States Supreme Court in Strickland, 466 U.S. 668. The standards enunciated there by the Court are applied unless there is other Supreme Court precedent directly on point. See Wright v. Van Patten, 552 U.S. 120, 125 (2008). Under Strickland, Wahl must show both deficient performance and prejudice in order to establish that counsel's representation was ineffective. 466 U.S. at 687. In the context of habeas claims evaluated under § 2254(d)(1) standards, the question “is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as the result of the alleged deficiencies. See Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id.; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (applauding district court's refusal to consider whether counsel's conduct was deficient after determining that petitioner could not establish prejudice). In undertaking this analysis, courts “consider the relative strength of the prosecution's case in analyzing whether counsel's errors prejudiced [the petitioner].” Luna v. Cambra, 306 F.3d 954, 966 (9th Cir. 2002), amended, 311 F.3d 928 (9th Cir. 2002); see Strickland, 466 U.S. at 696.
Wahl's specific contention is that his counsel failed to request a definition of “unlawful physical force” that included specific definitions for “endangerment,” “threatening and intimidation,” “assault,” and “aggravated assault.” Id., p. 7C. Relying on State v. Fish, 213 P.3d 258, Wahl argues that “the absence of these instructions allows the jury to speculate about the victim[‘]s behavior and would allow the jury to completely disregard all the self-defense evidence.” Doc. 1, p. 7D. However, even if it is assumed that Wahl's counsel was ineffective for failing to request a definition of “unlawful physical force,” the instructions that were given establish that Wahl was not prejudiced by the omission.
Unlike in Fish, the jury here was instructed not only on self-defense, but also on the defense of an occupied vehicle. Under that instruction, the jury was told that Wahl's actions could be justified if the jury determined that S.C. “was in the process of unlawfully or forcefully entering or had unlawfully or forcefully entered a residential structure or occupied vehicle.” Ex. BB, p. 30. The jury was additionally instructed that under such circumstances, a defendant has “no duty to retreat before threatening or using physical force or deadly physical force.” Id. This instruction required no showing of “unlawful physical force” and merely required that the jury believe, as Wahl contends, that S.C. was punching him through the truck window. From the verdict it is apparent that the jury did not believe that S.C., at least at the moment when he fell from the vehicle, was unlawfully or forcefully entering the vehicle. Thus, even without a requirement of showing that S.C. used “unlawful physical force,” the jury did not find support for Wahl's justification defense. As such, Wahl can show no prejudice based on counsel's purported failure to request a definition of “unlawful physical force.”
2. Ground Eleven
Prosecutorial misconduct is cognizable in federal habeas corpus, but the standard of review is the narrow standard of due process. Darden v. Wainright, 477 U.S. 168, 181 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial “fundamentally unfair.” Id.; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”). A prosecutor's improper comments will be held to violate the Due Process Clause only if they “'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden, 477 U.S. at 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1984).
In support of his claims of prosecutorial misconduct, Wahl sets forth numerous instances of purported misconduct, describes the trial court's rulings, and then describes how the Arizona Court of Appeals addressed the issues on appeal. Doc. 1, pp. 16A-16J. The appeals court's discussion of the prosecutor's conduct consumes nearly eight single-spaced pages and thoroughly addresses each of Wahl's arguments. Ex. J, pp. 7-15. The court's discussion first recognized the relevant controlling Arizona legal authority, which is entirely consistent with Darden. See Ex. J, pp. 7-8 (citing State v. Payne, 314 P.3d 1239, 1266 (Ariz. 2013) and State v. Hughes, 969 P.2d 1184, 1191 (Ariz. 1998)). The court then examined each of Wahl's claims and concluded by addressing the cumulative effect of any error, concluding that, “[a]lthough Wahl objects to many alleged instances of prosecutorial misconduct on appeal, the few that potentially constituted error were comments by the prosecutor during trial and closing arguments. Wahl has not shown that these few statements constituted misconduct that ‘permeated the trial and infected it with unfairness,' therefore no cumulative error occurred.” Ex. J, p. 15.
In the Petition, rather than offering argument in support of his contention that the Arizona Court of Appeals' decision was an unreasonable application of Darden, Wahl merely recites the history of his claims. The petition is devoid of any argument directed at illustrating how the state court's decision constituted an unreasonable application of Darden or other relevant federal authority. Understandably, Respondents have rebutted Wahl's contentions by setting forth the state court's decision in the Answer and noting that, “[o]ther than Wahl's erroneous assertion that the Arizona Court of Appeals failed to apply clearly established federal law to his claims of prosecutorial misconduct and his disagreement with the court's conclusion, he fails to explain how the state court's analysis was objectively unreasonable.” Doc. 26, p. 48. Having examined the appeals court's decision, and without any specific argument from Wahl, like Respondents, the Court concludes that the state court's finding of no prosecutorial misconduct warranting relief is not contrary to clearly established Supreme Court authority and is not an unreasonable application of that law given the facts and evidence.
3. Ground Thirteen
If the state court has already denied the claims of ineffective assistance of counsel, a federal habeas court may grant relief only if it finds the state court's decision was contrary to, or an unreasonable application of the Strickland standards. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). The court's evaluation of counsel's performance must be “highly deferential” and must avoid “the distorting effects of hindsight” by analyzing the challenged decision from counsel's perspective at the time. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance, id., and the Supreme Court has described federal review of a state court's decision on a claim of ineffective assistance of counsel as “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170, 189-90 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 112-113 (2009)).
Wahl asserts that his trial counsel was ineffective in failing to “properly investigate and to properly evaluate blood and DNA evidence alleged to have been on the tire of Wahl's truck” because counsel did not order testing of the swabs taken from the left rear tire. Doc., pp. 18A-18F. The state post-conviction court, which also presided over Wahl's 10-day trial, denied his PCR petition, specifically finding that “trial counsel was no[t] ineffective and that [Wahl's] conviction by jury would not have been different if trial counsel had pursued the line of inquiry urged by [Wahl] in this [PCR] proceeding.” Ex. O.
The Arizona Court of Appeals granted review, but denied relief finding that Wahl had not made a colorable claim of IAC. Ex. Q, p. 3. The appellate court explained that Wahl had “not established that trial counsel had any reason to suspect testing the swabs from the tire would yield useful exculpatory evidence” because trial evidence showed that “the night before law enforcement official came to seize Wahl's truck at his home, it had been raining and snowing, Wahl's driveway was ‘muddy and full of large water puddles' and it appeared the truck ‘had been driven through some of those puddles recently.'” Id.
The court further explained that “Wahl has provided no evidence to support his assertion that ‘[a]ny forensic medical examiner' would testify blood or DNA would have been present if Wahl had run over the victim.” Ex. Q, pp. 3-4.
Nothing about the Arizona Court of Appeals decision can be characterized as unreasonable. See Yarborough, 540 U.S. at 5. As Respondents contend, the absence of any blood on the truck's tires would not have provided Wahl the evidentiary advantage he claims it would. As the state courts observed, any lack of blood evidence on the tires could easily have been explained by the weather and road conditions that night. The investigating detective testified that “[i]t had rained off and on and snowed off and on. And . . . where the truck was located at [Wahl's] home, the driveway was muddy and full of large water puddles.” Ex. V, p. 155. She further stated that the ground and the driveway were wet, the truck was parked in a puddle, and it appeared the truck recently had been driven through some puddles. Id. Thus, the absence of any blood on the truck's tire would have readily been explained and would not have exonerated Wahl. Moreover, if the swabs had been tested and blood or DNA found, the medical examiner's opinion that S.C.'s cause of death was “cranial cerebral injuries from being run over by a motor vehicle,” and Pallanes' and Shanda's testimony that they had seen Wahl run over S.C., would have been further corroborated.
Wahl has not met his burden of showing that the state courts applied Strickland to the facts of his case in an objectively unreasonable manner. Knowles, 556 U.S. at 123. Thus, he is not entitled to relief on this claim.
V. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, dismiss Wahl's Petition for Writ of Habeas Corpus (Doc. 1), direct the Clerk of Court to enter judgment in favor of Respondents and against Petitioner.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, 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 District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 18-0046-TUC-DCB. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).