Opinion
CV-18-3370-PHX-SRB (JFM)
11-04-2019
Emanuel Charles Whiteside, Petitioner v. Charles L. Ryan, et al., Respondents.
Report & Recommendation on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 19, 2019 (Doc. 12). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
¶2 On November 1, 2012, the Phoenix Police Department received an anonymous tip that a white jeep was driving erratically, indicating a possible DUI. Phoenix Police Officers located the vehicle, called in its plates, and learned that it had been reported stolen. At that point, officers pulled the vehicle over and observed Defendant in the driver's seat in what appeared to be an intoxicated state.
¶3 The officers placed the Defendant in the patrol car and transported him to the Phoenix Police Station. An officer then
questioned Defendant on how he came into possession of the vehicle. Defendant stated a stranger approached him and offered to sell the vehicle for a total of $3,000, $500 of which was due immediately as a down payment. Defendant knew he was "getting a really good deal," because he thought the vehicle was worth $12,000. Defendant paid the stranger $300 cash on the spot and an additional $200 a few days later. When the officer requested the name and contact information for the stranger, Defendant was unable to produce any identifying information.
* * *
¶5 At trial, the victim testified that he did not give Defendant permission to use the vehicle. Additionally, the victim testified about the value of the vehicle. He testified that the vehicle was a 2006 four-door, four-by-four Jeep Cherokee, and that he had purchased it for $14,000 in 2010. He further testified that in 2012, at the time of the theft, the vehicle was in good working order, had 150,000 miles, and, in his estimate, was worth $10,000.(Exh. G, Mem. Dec. 10/1/15.) (Exhibits to the Answer, Doc. #, are referenced herein as "Exh. ___.") B. PROCEEDINGS AT TRIAL
Petitioner was indicted on one count of theft and two counts of aggravated DUI. (Exhibit A, Indictment.) Counsel was appointed. At the Final Trial Management Conference, Petitioner moved to represent himself, which was granted, but advisory counsel was appointed. (Exh. B, M.E. 10/15/13.) An investigator was appointed on Petitioner's motion. (Exh. C, M.E. 10/31/13.) Petitioner proceeded to a jury trial. After final jury instructions, Petitioner moved to have Advisory Counsel assume representation, who then delivered the closing argument. (Exh. D, M.E. 5/14/14.) Petitioner was found guilty as charged. A sentencing aggravation hearing was held, and the jury found the alleged aggravating factors not proven. (Exh. E, M.E. 5/15/14.) On August 15, 2014, Petitioner was sentenced to concurrent terms of 9 years on the theft charge, and eight years on each of the DUI charges. (Exh. F, Sentence.) C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal, and through counsel argued that the trial court erred in instructing the jury that a below fair market value purchase can create an inference of awareness of risk that property was stolen, and that the trial court's single reference to "real" property was not error. The Arizona Court of Appeals rejected both arguments and affirmed. (Exh. G, Mem. Dec.)
Petitioner sought review by the Arizona Supreme Court, which denied review on April 13, 2016. D. PROCEEDINGS ON POST-CONVICTION RELIEF
On September 10, 2014, during the pendency of his direct appeal, Petitioner filed a Notice of Post-Conviction Relief (Exh. H). Counsel was appointed, who ultimately filed a notice of inability to find a colorable issue for review. (Exh. I, Not. Complet.) Petitioner was granted leave to file a pro per PCR petition, and counsel was directed to remain in an advisory capacity. (Exh. J, M.E. 8/31/16.)
Petitioner filed a pro per PCR petition (Exh. K), and a Petition for Amendment Rule-32 Post Conviction Relief (Exh. M).
The PCR court denied the Petition, finding Petitioner's various claims without merit, including his claims that counsel was ineffective for failing to investigate, for failing to present Petitioner's theory of the case in closing arguments, and a claim based on an arresting officer who died prior to trial who may have had exculpatory testimony. (Exh. P, M.E. 5/22/17.)
Petitioner sought review from the Arizona Court of Appeals, who granted review but summarily denied relief. (Exh. Q, Mem. Dec. 2/13/18.) Petitioner did not seek further review. (Id. at Mandate.) E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 18, 2018 (Doc. 1). That petition was dismissed with leave to amend. (Order 2/6/19, Doc. 11.) Petitioner then filed his Amended Petition (Doc. 12) on February 19, 2019 (hereinafter the "Petition"). Petitioner's Petition asserts the following four grounds for relief:
(1) Pretrial counsel was ineffective for failing to conduct any investigation.
(2) Advisory counsel was ineffective for failing to present the closing argument requested by Petitioner.
(3) Pretrial counsel was ineffective for failing to advise Petitioner that the victim had a second vehicle which was broken into and keys to Petitioner's "purchased" vehicle were inside the second vehicle.
(4) Prosecutorial misconduct from failure to disclose the break in to the victim's second vehicle, the caller, and the deceased arresting officer.
Response - On April 24, 2019, Respondents filed their Answer (Doc. 17). Respondents argue that each of Petitioner's grounds do not merit relief under the deferential review in 28 U.S.C. § 2254(d).
Reply - On May 9, 2019, Petitioner filed a Reply (Doc. 21). Petitioner argues his innocence, failure of the prosecution to advise the grand jury of exculpatory evidence (including the "second vehicle"), and the merits of his claim on closing argument.
"The district court need not consider arguments raised for the first time in a reply brief." Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Consequently, the undersigned does not address the new claims regarding actual innocence and grand jury error. It is true that Petitioner included the phrase "ACTUAL INNOCENCE" in the caption of his Amended Petition (Doc. 12 at 1). But he did not argue his actual innocence as a ground for relief in his Amended Petition.
III. APPLICATION OF LAW TO FACTS
A. GROUND 1 - IAC RE INVESTIGATION
In Ground 1, Petitioner argues he was denied effective assistance of counsel because pretrial counsel failed to investigate. Respondents argue the claim is without merit because it was rejected on the merits by the PCR court and that decision is not remediable under 28 U.S.C. § 2254(d).
Where the state court has rejected a claim on the merits, the habeas court cannot grant relief unless the state court's decision was "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." In evaluating state court decisions, the federal habeas court looks through summary opinions to the "last reasoned decision." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the last reasoned decision is that of the PCR court.
The PCR court rejected Petitioner's claim of ineffective assistance regarding investigation on the merits, reasoning:
In support of his request for post-conviction relief, [Whiteside] alleges, inter alia, that the case was not properly investigated and that certain potential witnesses should have been called to testify at trial, but weren't. [Whiteside's] claim is, essentially, one of ineffective assistance of trial counsel. Because, more than six months before trial, [Whiteside] chose to waive his right to counsel and act as his own attorney, see Minute Entry of October 15, 2013 at p. 1, and the Court appointed an investigator to assist in his defense, see Minute Entry of October 31, 2013 at p. 2, [Whiteside] is not entitled to assert an "ineffective assistance" claim. See, e.g., State v. Russell, 175 Ariz. 529, 535, 858 P.2d 674, 680 (App. 1993) (denying relief to self-represented defendant who was "essentially challenging his own performance in representing himself").(Exhibit P, at 2.)
Petitioner points to no factual error in that analysis. The undersigned finds none.
However, the state court failed to recognize that self-representation does not operate as a waiver of claims of ineffective assistance counsel. Instead, the principle is that a self-representing defendant cannot complain of his own ineffectiveness. "[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel." Cook v. Ryan, 688 F.3d 598, 609 (9th Cir. 2012) (quoting Faretta v. California, 422 U.S. 806, 834, n. 46 (1975)) (emphasis added).
In keeping with this principle, errors by counsel made prior to a defendant's election to represent himself will not constitute a basis for relief if the defendant "could have corrected those errors once he decided to represent himself." Cook, 688 F.3d at 609. The normal rules of ineffective assistance, as laid out in Strickland v. Washington, 466 U.S. 668 (1984) (deficient performance and prejudice) continue to apply to the conduct of counsel during his term of representation, although the defendant's own failings during his term of self-representation may cut the line of causation for counsel's deficient performance, and thus preclude a finding of prejudice from such deficiency.
Thus, the state court decision was an unreasonable application of Supreme Court law as determined in Faretta and Strickland. It extended Faretta beyond its plain language to avoid application of the general rule of Strickland.
Nonetheless, as recognized by the state court's factual findings, Petitioner represented himself beginning October 15, 2013. (Exh. B M.E. 10/15/13.) Trial did not commence until May 9, 2014. (Exh. R, Trial Docket.) Thus, Petitioner had almost seven months to investigate. Moreover, an investigator was appointed on October 31, 2013. (Exh. C, M.E. 10/31/13.) Thus, Petitioner had available to him the resources of an investigator and advisory counsel for almost seven months prior to trial. Petitioner proffers no reason why he could not have discovered in that time period whatever pretrial counsel failed to investigate.
Petitioner argued to the PCR court that the prosecution "fail[ed] to disclose evidence of documentation requested by the investigator assigned to defendant's case for his investigation for the defendant's defense investigator couldn't complete his investigation due to unavailable information requested." (Exh. M, Amend. PCR Pet. at 7.) The prosecution responded: "In an interview with the prosecutor, the investigator said he had received all the documents he needed. (RT 5/13/14 at 83.) The investigator also testified that he had read the police reports. (Id. at 92-93, 96, 98.)". (Exh. N, PCR Resp. at 7, n. 3.) Petitioner makes no similar allegations in his habeas briefs. --------
Moreover, to prevail on an allegation that defense counsel conducted an insufficient investigation resulting in ineffective assistance, the petitioner must show specifically what that investigation would have produced. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). "[S]elf-serving speculation will not sustain an ineffective assistance claim." U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991). Here, Petitioner fails to identify any particular facts that trial counsel's investigation would have uncovered, but Petitioner could not.
He does raise the report that the victim had a second vehicle broken into, which forms the basis of his claims in Grounds 3 and 4. But, Petitioner fails to explain why this information was not available to him and his investigator. Indeed, he alleges that it was contained within the police reports. (Pet. Doc. 12 at 9.) Further, he fails to explain how lack of this information prejudiced him. There is nothing incongruent between the prosecution's case and evidence that the victim had another vehicle that had been broken into. Nor was there anything incongruent in the fact that keys to the stolen vehicle were inside the burgled vehicle. Petitioner reports that the police officer recorded being "suspicious" when the second vehicle was in use and gone when he arrived to investigate. Whatever the nature of that suspicion, Petitioner fails to explain how it exculpated him.
He also references in Ground 4 statements in the police report about the call reporting the swerving vehicle. Again, this information was available to Petitioner and his investigator, and Petitioner fails to show how it would have altered the outcome of trial.
Finally, he references in Ground 4 that one of the arresting officers was deceased. He argues this officer could have offered evidence of Petitioner having provided documentation of his ownership of the vehicle. Petitioner fails to show that this officer was available to counsel but not to Petitioner and his investigator, and offers nothing other than his own self-serving speculation that the officer's testimony would have been exculpatory, let alone sufficient to overcome the other evidence of Petitioner's guilt.
Ground 1 is without merit and should be denied. B. GROUND 2 - IAC RE CLOSING ARGUMENTS
In Ground 2, Petitioner argues that counsel was ineffective in failing to present his desired closing argument.
Respondents argue the claim is without merit because it was rejected on the merits by the PCR court and that decision is not remediable under 28 U.S.C. § 2254(d).
The PCR court opined:
[Whiteside] complains that "the court erred [by] allowing advisory counsel to present closing argument," and further complains that, when he delivered the closing argument, advisory counsel failed to adhere to the script that [Whiteside] had written out for him. As a result, [Whiteside] asserts, his advisory counsel's closing argument had the effect of "altering [Whiteside's] testimony to his own
coherison [sic]." Petition for Amendment Rule-32 Post Conviction Relief at pp. 8, 11. As [Whiteside] is well aware, advisory counsel presented the closing argument at trial at [Whiteside's] own request. Minute Entry of May 14, 2014 at p. 2. The Court cannot be said to have committed error entitling [Whiteside] to relief by granting [his] own request that his advisory counsel present the closing argument. Moreover, notwithstanding [Whiteside's] assertion to the contrary, advisory counsel could not possibly have "altered" [Whiteside's] testimony in closing argument, since [Whiteside] never testified at trial. Further, [Whiteside] identifies no specific error or mistake in advisory counsel's closing argument, and so has failed to justify his request for relief. See State v. Krum, 183 Ariz. 288, 294, 903 P.2d 596, 602 (1995) (petition for post-conviction relief must be supported by more than conclusory statements).(Exhibit P, at 2-3.)
Petitioner points to no factual error in that analysis. The undersigned finds none.
Petitioner also points to no legal error in that analysis. The undersigned finds none.
First, violation of Petitioner's instructions was not of itself a basis for relief.
Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has-and must have-full authority to manage the conduct of the trial. As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. Thus, decisions by counsel are generally given effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Absent a demonstration of ineffectiveness, counsel's word on such matters is the last.New York v. Hill, 528 U.S. 110, 114-115 (2000) (internal quotations and citations omitted, emphasis added). Cf. McCoy v. Louisiana, 138 S.Ct. 1500, 1509 (2018) (approving of Hill but concluding defendant can override counsel's decision to concede guilt to jury).
Petitioner fails to proffer any facts to show that the argument counsel made was deficient performance, or that prejudice resulted. He only baldly states that "[i]f advisory counsel hadn't of changes one's defense likely defendant's [sic] would not have been found guilty." (Amend. Pet. at 7.) There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. United States v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Consequently, cursory allegations that are purely speculative cannot support a claim of ineffective assistance of counsel. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir.), cert. denied, 493 U.S. 869 (1989). Although Petitioner contends the argument was a change from his planned argument, he fails to allege any facts to show that it was unreasonable in light of the evidence and jury instructions.
Ground 2 is without merit and must be denied. C. GROUND 3 - IAC RE SECOND VEHICLE
In Ground 3, Petitioner argues that pretrial counsel was ineffective for failing to advise Petitioner that the victim had a second vehicle which was broken into and a second set of keys to Petitioner's "purchased" vehicle were inside. As with Ground 1, Respondents point to the state court's decision finding a waiver of claims of ineffective assistance by undertaking self-representation.
As with Ground 1, that decision was an unreasonable application of Faretta and Strickland. However, as with Ground 1, Petitioner fails to show that this information (reflected in the police reports) was not available to him and his investigator, or any exculpatory effect from this information. Thus, Petitioner fails to show any prejudice from counsel's purported failure to investigate this issue.
Ground 3 is without merit and must be denied. D. GROUND 4 - BRADY
In Ground 4, Petitioner argues that the prosecution failed to disclose exculpatory evidence, including the report of the second vehicle, the caller reporting Petitioner as swerving, and the death of the investigating officer. Respondents rely on the state court decision as a resolution on the merits.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that a defendant's due process rights are violated when the state fails to disclose to the defendant prior to trial "evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87.
In the portion of the PCR decision referenced by Respondents, the court opined:
In support of his request for post-conviction relief, [Whiteside] complains that one of the officers involved in his arrest died prior to trial, and that officer's "testimony may be different from other state's witnesses." Petition for Amendment Rule-32 Post Conviction Relief at p. 8. Because a request for post-conviction relief cannot be based on speculation, see, e.g., State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980), [Whiteside] is entitled to no relief based on speculation that he might, in some unspecified way, have been exonerated by the testimony of a police officer who was a potential witness but who died prior to trial.(Exhibit P, at 2.) This decision addressed, at most, the facts of only one of Petitioner's claims. Accordingly, there is no decision on the merits with regard to Petitioner's claims concerning the second vehicle and the caller.
Moreover, Petitioner did not present to the PCR court his claim regarding the deceased officers as a failure to disclose. (See Exh. M, Amended PCR Pet. at 8.) The prosecution did not perceive it as such a claim. (See Exh. N, PCR Resp. at 7 ("additional complaints about...absence of testimony from a deceased police officer")). Petitioner's reply was limited to arguing about failure to advise on the plea offer. (Exh. O, PCR Reply.) Nor did the PCR court address it as a Brady / failure to disclose claim.
In violation of Rule 5(d), Rules Governing § 2254 Cases, Respondents fail to provide copies of Petitioner's briefs on review from the PCR proceeding. Consequently, the undersigned presumes they would not reveal the presentation of the misconduct claim, or otherwise establish that the state courts decided his misconduct claim on the merits.
Accordingly, there being no showing of a decision on the merits as to any portion of the claim in Ground 4, this Court reviews the claims de novo. Kayer v. Ryan, 923 F.3d 692, 701 (9th Cir. 2019).
Even where a claim was not addressed on the merits by the state courts, 28 U.S.C. § 2254(e)(1) requires that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence." However, Respondents point to no state court findings of fact relevant to these claims. The portions of the PCR court decision referenced by Respondents made no factual findings. It simply paraphrased the claim it discerned and found it too speculative to merit relief.
Nonetheless, the claims are without merit.
Regarding the second vehicle, Petitioner points to no failure of disclosure by the prosecution, and as discussed above, fails to show how this evidence was exculpatory.
Regarding the caller, Petitioner points to no failure of disclosure. Nor does he allege any facts (nor even offer speculation) about how the caller's testimony would have been exculpatory. It was wholly unrelated to the theft charge, and presumably inculpating on the DUI charges.
Regarding the investigating officer, Petitioner points to no failure of disclosure. The death of a witness does not amount to a failure to disclose. Moreover, Petitioner proffers nothing to show that the prosecution failed to disclose the officer. Indeed, his participation was known to Petitioner, inasmuch as he was "the arresting officer." (Pet., Doc. 12 at 9.) Nor does Petitioner proffer anything to suggest that the prosecution was aware that the officer's testimony would have been anything other than what was reflected in the police report.
Ground 4 is without merit and must be denied. E. SUMMARY
Petitioner's claims are without merit. Consequently, the Petition must be denied.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be on the merits. Under the reasoning set forth herein, jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Petitioner's Amended Petition for Writ of Habeas Corpus, filed February 19, 2019 (Doc. 12) be DENIED.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages." Dated: November 4, 2019 18-3370r RR 19 10 23 on HC.docx
/s/_________
James F. Metcalf
United States Magistrate Judge