Opinion
No. CV-07-669-PHX-SRB (LOA).
October 5, 2007
REPORT AND RECOMMENDATION
This matter arises on Petitioner's Amended Petition for Writ of Habeas Corpus by Person in State Custody Pursuant to 28 U.S.C. § 2254. (docket # 6) Respondents have filed an Answer (docket # 9) to which Petitioner has not replied and the time in which to do so has expired.
I. Background
A. Charges and Trial
On September 15, 2003, the State of Arizona charged Petitioner with two counts of aggravated assault in violation of A.R.S. §§ 13-1203, 13-1204, and one count of attempted armed robbery in violation of A.R.S. § 13-1001, 13-1904, 13-1901, and 13-1902. (Respondents' Exh. A at 1, 4) Petitioner proceeded to trial and on May 20, 2004, a jury convicted Petitioner of two counts of aggravated assault and one count of attempted armed robbery. (Respondents' Exh. A at 1, 7; Exh. B at 3-4) On July 30, 2004, the trial court sentenced Petitioner to a total of 22 years' imprisonment. (docket # 6 at 4; Respondents' Exh. A at 4)
The Honorable Gary E. Donahoe presided.
B. Direct Appeal
On August 18, 2004, Petitioner filed a timely appeal. (docket # 6 at 4) On February 15, 2005, Petitioner's counsel filed an Opening Brief in the Arizona Court of Appeals pursuant to Anders v. California, 386 U.S. 738 (1967) advising the court that he could find no viable issues to raise and requesting permission for Petitioner to file a pro se brief. (Respondents' Exh. B at 5) On April 18, 2005, Petitioner filed a supplemental brief raising the following claims: (1) the prosecutor engaged in misconduct; (2) the witnesses lacked credibility; (3) he did not receive a fair trial because the jury was aware that Petitioner was in custody; (4) trial counsel was ineffective; and (5) there was insufficient evidence to support his conviction. (Respondents' Exh. A at 5; Exh. C at 1-9) Petitioner did not base any of his claims on federal law. ( Id.) On August 4, 2005, the Arizona Court of Appeals affirmed Petitioner's convictions. (Respondents' Exh. A)
C. Post-Conviction Proceedings
On August 18, 2005, Petitioner filed a notice of post-conviction relief pursuant to Ariz.R.Crim.P. 32. (docket # 6 at 3) On November 22, 2005, Petitioner filed a pro se Petition for Post-Conviction Relief. (Respondents' Exh. D) Petitioner claimed that trial counsel engaged in "misconduct." (Respondents' Exh. D at 3) Petitioner argued that he was not given an opportunity to confer with counsel in person before trial, counsel advised him that he would be sentenced to no more than 7 ½ years if he proceeded to trial, counsel did not develop a "firm defense, and counsel did not question Petitioner's "alleged victims under [Petitioner's] line of questioning and she refused to do so!!!" ( Id.) Petitioner did not cite federal law in support of his claims.
Petitioner indicates that on August 18, 2005, he filed a petition for writ of certiorari with the United States Supreme Court. (docket # 6 at 3) The record, however, reveals that the August 18, 2005 pleading was a petition for post-conviction relief pursuant to Ariz.R.Crim.P. 32. (Respondents' Exh. D)
On February 14, 2006, the trial court denied Petitioner's petition for post-conviction relief. (Respondents' Exh. E)
On March 14, 2006, Petitioner sought review in the Arizona Court of Appeals raising the following claims: (1) counsel failed to consult with Petitioner in person before trial; and (2) counsel advised him that "everything is going to be alright." (Respondents' Exh. F at 2) Petitioner did not cite federal law in support of his claims. On March 12, 2007, the Arizona Court of Appeals denied review. (Respondents' Exh. G)
D. Petition for Writ of Habeas Corpus
Thereafter, Petitioner timely filed the pending Amended Petition for Writ of Habeas Corpus (docket # 6) which is now briefed and ready for review. Petitioner raises the following grounds for relief: (1) trial counsel was ineffective in violation of the Sixth Amendment; (2) the trial court erred in granting immunity to two witnesses; (3) insufficient evidence supported Petitioner's convictions; and (4) Petitioner's Sixth Amendment right was violated due to a lack of physical evidence connecting Petitioner to the gun used in the crime. (docket # 6) Respondents assert that Petitioner procedurally defaulted claims 2, 3, and 4 and that his remaining claim lacks merit. The Court will first address the procedural default issue.
II. Analysis of Exhaustion and Procedural Default
Respondents assert that Petitioner has failed to exhaust grounds 2, 3 and 4 and that they are procedurally barred. Petitioner contends that he properly presented those claims to the State courts. (docket # 6)
A. Exhaustion and Procedural Default
The Supreme Court has repeatedly held that state courts should be given the first opportunity to consider a state prisoner's assertion that his state conviction and/or sentence violates federal law. Williams v. Taylor, 529 U.S. 420, 436-37 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Thus, before a federal court may grant a state prisoner habeas corpus relief, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); Williams, 529 U.S. at 436-37; Coleman, 501 U.S. at 731. The requirement that state prisoners first present their claims in federal court, or exhaust their state court remedies, is intended "to prevent `unnecessary conflict' between courts equally bound to guard and protect the rights secured by the Constitution." Picard v. Connor, 404 U.S. 270, 275-276 (1971). In view of the exhaustion requirement, the federal court will not entertain a petition for writ of habeas corpus unless the state prisoner has exhausted his federal claims in state court. Pliler v. Ford, 542 U.S. 225, 230 (2004); Rose v. Lundy, 455 U.S. 509, 521-22 (1982).
To properly exhaust a claim in the state courts, a petitioner must have afforded the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Castille v. Peoples, 489 U.S. 346, 349 (1989); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (stating that "[t]o provide the State with the necessary `opportunity,' the prisoner must "fairly present" her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim."). The Ninth Circuit Court of Appeals has concluded that, in Arizona, in the context of a petitioner who has not been sentenced to death, the "highest court" requirement is satisfied if the petitioner has presented the claim to the Arizona Court of Appeals either on direct appeal or in a petition for post-conviction relief. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Beyart v. Schriro, 2006 WL 1305275, * 3 n. 2 (D.Ariz. 2006) ("Arizona law no longer requires that a life sentence case be appealed to the Arizona Supreme Court.") "[S]ubmitting a new claim . . . in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). Additionally, to fairly present his claims, a petitioner must describe both the operative facts and the federal legal theory. Reese, 541 U.S. at 28. It is not enough that all of the facts necessary to support the federal claim were before the state court or that a "somewhat similar" state law claim was raised. Reese, 541 U.S. at 28 (stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim). Rather, the habeas petitioner must cite in state court to the specific constitutional guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Similarly, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (insufficient for prisoner to have made "a general appeal to a constitutional guarantee," such as a naked reference to "due process," or to a "constitutional error" or a "fair trial"). Similarly, a mere reference to the "Constitution of the United States" does not preserve a federal claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Even if the basis of a federal claim is "self-evident" or if the claim would be decided "on the same considerations" under state or federal law, the petitioner must make the federal nature of the claim "explicit either by citing federal law or the decision of the federal courts. . . ." Lyons, 232 F.3d at 668. A state prisoner does not fairly present a claim to the state court if the court must read beyond the pleading filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27.
In summary, "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).
Where a habeas petitioner has failed to "fairly present" his federal claims to the state's highest available court in a procedurally appropriate manner, state court remedies may, nonetheless, be "exhausted." This type of exhaustion is often referred to as "procedural default" or "procedural bar." Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991); Coleman, 501 U.S. at 731-32. There are two categories of procedural default.
First, a state court may have applied a procedural bar, such as waiver or preclusion, when the prisoner attempted to raise the claim in state court. Nunnemaker, 501 U.S. at 802-05. Thus, a state prisoner may be barred from raising federal claims that he did not preserve in state court by making a contemporaneous objection at trial, on direct appeal, or when seeking post-conviction relief. Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995) (stating that failure to raise contemporaneous objection to alleged violation of federal rights during state trial constitutes a procedural default of that issue.); Thomas v. Lewis, 945 F.2d 1119, 1121 (9th Cir. 1991) (finding claim procedurally defaulted where the Arizona Court of Appeals held that habeas petitioner had waived claims by failing to raise them on direct appeal or in first petition for post-conviction relief.) If the state court also addressed the merits of the underlying federal claim, the "alternative" ruling does not vitiate the independent state procedural bar. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Carringer v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (state supreme court found ineffective assistance of counsel claims "barred under state law," but also discussed and rejected the claims on the merits, en banc court held that the "on-the-merits" discussion was an "alternative ruling" and the claims were procedurally defaulted and barred from federal review). A higher court's subsequent summary denial of review affirms the lower court's application of a procedural bar. Nunnemaker, 501 U.S. at 803.
In the second procedural default scenario, where a state prisoner failed to present his federal claims in state court returning to state court would be "futile" because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); State v. Mata, 185 Ariz. 319, 322-27, 916 P.2d 1035, 1048-53 (1996); Ariz. R. Crim. P. 32.2(a) (b); Ariz. R. Crim. P. 32.1(a)(3) (relief is precluded for claims waived at trial, on appeal, or in any previous collateral proceeding); 32.4(a); Ariz. R. Crim. P. 32.9 (stating that petition for review must be filed within thirty days of trial court's decision). A state post-conviction action is futile where it is time-barred. Beaty, 303 F.3d at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)). Arizona courts have consistently applied their procedural default rules. Stewart v. Smith, 536 U.S. 856, 860 (2002) (holding that Arizona Rule of Criminal Procedure 32.2(a) is an adequate and independent procedural bar); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting the argument that Arizona courts have not "strictly or regularly followed" Rule 32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting the assertion that Arizona courts' application of procedural default rules had been "unpredictable and irregular.").
In either case of procedural default, federal review of the claim is barred absent a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Dretke v. Haley, 541 U.S. 386, 393-94, (2004); Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish "cause," a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Id. The following objective factors may constitute cause: (1) interference by state officials, (2) a showing that the factual or legal basis for a claim was not reasonably available, or (3) constitutionally ineffective assistance of counsel. Id. Ordinarily, the ineffective assistance of counsel in collateral proceedings does not constitute cause because "the right to counsel does not extend to state collateral proceedings or federal habeas proceedings." Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996). To establish prejudice, a prisoner must demonstrate that the alleged constitutional violation "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension." United States v. Frady, 456 U.S. 152, 170 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Where petitioner fails to establish cause, the court need not reach the prejudice prong.
A federal court may also review the merits of a procedurally defaulted habeas claim if the petitioner demonstrates that failure to consider the merits of his claim will result in a "fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 327 (1995). A "fundamental miscarriage of justice" occurs when a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. To satisfy the "fundamental miscarriage of justice" standard, petitioner must establish that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of new evidence. Schlup, 513 U.S. at 327; 28 U.S.C. § 2254(c)(2)(B). Even if petitioner asserts a claim of actual innocence to excuse his procedural default of a federal claim, federal habeas relief may not be granted absent a finding of an independent constitutional violation occurring in the state criminal proceedings. Dretke, 541 U.S. at 393-94.
B. Application of Law to Petitioner's Claims
Respondents assert that Petitioner's second, third, and fourth grounds for relief are procedurally barred. (docket # 9) Petitioner contends that he properly presented these claims to the Arizona Court of Appeals. (docket # 6)
Petitioner never presented the Arizona Court of Appeals with the federal claims raised in grounds 2, 3 and 4. On direct appeal, Petitioner asserted that the trial court erred in granting immunity to the victims and that they lacked "credibility." (Respondents' Exh. C at 2-3) He also asserted that the evidence was insufficient to support his conviction. (Respondents' Exh. C) Although these claims are factually similar to Petitioner's second and third grounds for relief, Petitioner never presented these claims on the basis of federal law to the state courts. ( Id.) Rather, Petitioner merely re-hashed the evidence at trial and did not refer to federal law. ( Id.)
The presentation of a state law claim is not sufficient to fairly present a federal claim. Rather, the "fair presentation" component of the exhaustion doctrine requires a state prisoner to present a claim to the state courts based on the same legal theory upon which he relies in federal court. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."); Reese, 541 U.S. at 28 (stating that a reference to ineffective assistance does not alert the state court to the federal nature of the claim); Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005) (holding that claim and argument relating only to Arizona rules followed by a conclusory citation of a federal constitutional provision, "divorced from any articulated federal legal theory," does not fairly present a federal claim.). The state courts should be afforded the first opportunity to consider a state prisoner's claim that his conviction and/or sentence violates his federal rights. Williams, 529 U.S. at 436-37. Thus, a federal court cannot grant habeas relief based on federal claims that were never presented to the state courts. Noltie v. Peterson, 9 F.3d 802, 804 (9th Cir. 1993).
Petitioner's failure to fairly present the federal claims raised in grounds two, three and four to the Arizona courts renders those claims technically exhausted, but procedurally defaulted because Arizona's procedural rules prohibit Petitioner from returning to state court to raise those claims. Generally, any claim not previously presented to the Arizona courts is procedurally barred from federal review because any attempt to return to state court to properly exhaust a current habeas claim would be "futile." Ariz. R. Crim. P. 32.1, 32.2(a) (b); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); State v. Mata, 185 Ariz. 319, 322-27, 916 P.2d 1035, 1048-53 (1996); Ariz. R. Crim. P. 32.1(a)(3) (relief is precluded for claims waived at trial, on appeal, or in any previous collateral proceeding); 32.4(a); Ariz. R. Crim. P. 32.9 (stating that petition for review must be filed within thirty days of trial court's decision). A state post-conviction action is futile where it is time-barred. Beaty, 303 F.3d at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)). Here, the deadline for Petitioner to seek state post-conviction review has long expired. Specifically, Rule 32.4 of the Arizona Rules of Criminal Procedure provides that in non-capital cases, "the notice [of post-conviction relief] must be filed within ninety days after entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is later. . . ." Ariz.R.Crim.P. 32.4; White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989) (affirming the district court's dismissal of a petition for writ of habeas corpus because state prisoner lacked a "currently available state remedy at the time of the federal petition.") Additionally, Arizona law precludes Petitioner's claims in a subsequent petition for post-conviction relief. Ariz. R. Crim.P. 32.2(a)(1) (providing that a claim that could have been raised on direct appeal is precluded from post-conviction review); Ariz.R.Crim.P. 32.2(a)(2) (providing that a claim that has "been finally adjudicated on the merits on appeal or in any previous collateral proceeding" is precluded from review); and Ariz.R.Crim.P. 32.2(a)(3) (precluding post-conviction relief upon any ground "that has been waived at trial on appeal, or in any previous collateral proceeding."); Mata, 185 Ariz. at 332, 916 P.2d at 1048 (defendant waived his claim that defendant's counsel was ineffective where defendant did not raise that claim in first or second petition for post-conviction relief.)
Because Petitioner did not properly present grounds two, three, and four to the Arizona state courts, these claims are procedurally barred. Accordingly, the Court need not reach the merits of these claims unless Petitioner either establishes "cause and prejudice" or a "fundamental miscarriage of justice." Bradshaw v. Richey, ___ U.S. ___, 126 S.Ct. 602, 605 (2005); Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (stating that "[a] prisoner who fails to comply with state procedures cannot receive federal habeas corpus review of a defaulted claim unless the petitioner can demonstrate either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.") (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
C. "Cause and Prejudice" or "Fundamental Miscarriage of Justice"
As discussed below, Petitioner does not establish a basis to overcome the procedural default on grounds two, three, and four. Proof of cause "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis." Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations marks omitted).
Petitioner has not asserted any basis to overcome the procedural bar. Petitioner's pro se status and ignorance of the law do not satisfy the cause standard. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir. 1986). Therefore, Petitioner has failed to carry his burden of proof regarding cause and prejudice.
Petitioner also fails to establish that failure to consider his claims would result in a fundamental miscarriage of justice. Schlup, 513 U.S. at 327. To satisfy the "fundamental miscarriage of justice" test, Petitioner must show that his trial "resulted in the conviction of one who is actually innocent of the underlying offense." Dretke v. Haley, 541 U.S. 368, 393 (2004) (reaffirming the "narrow exception" to the requirement that a habeas petitioner demonstrate "cause" for his procedural default in state court for situations concerning a "fundamental miscarriage of justice" where "a constitutional violation has `probably resulted' in the conviction of one who is `actually innocent' of the substantive offense.") (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Petitioner has not asserted a claim of actual innocence. In view of Plaintiff's failure to overcome the procedural bar, his second, third, and fourth claims are barred from federal habeas corpus review.
III. Analysis of Claims
After discussing the standard of review, the Court will consider the merits of Petitioner's claims asserted in ground one which are Respondents assert are properly before the Court.
In ground one, Petitioner asserts a claim of ineffective assistance of counsel. Respondents assert that even though Petitioner did not present his claims of ineffective assistance to the state courts on the basis of federal law, "Petitioner arguably exhausted the claim even though he did not style it as federal." (docket # 9 at 7) Although Respondents assertion is contrary to the law on exhaustion, Reese, 541 U.S. at 28 (stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim), the Court need not resolve the procedural issue because the Court may deny unexhausted claims that lack merit. 28 U.S.C. § 2254.
A. Standard of Review
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") which "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Under the AEDPA, a state prisoner "whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d)." Price v. Vincent, 538 U.S. 634, 638 (2003). Thus, a state prisoner is not entitled to relief unless he demonstrates that the state court's adjudication of his claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2); Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653 (2006); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003); Mancebo v. Adams, 435 F.3d 977, 978 (9th Cir. 2006). To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, courts must look exclusively to the holdings of the Supreme Court which existed at the time of the state court's decision. Mitchell v. Esparza, 540 U.S. 12, 15-15 (2003); Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Accordingly, the Ninth Circuit has acknowledged that it cannot reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal constitutional issue. Brewer v. Hall, 378 F.3d 952, 957 (9th Cir. 2004); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
Even if the state court neither explained its ruling nor cites United States Supreme Court authority, the reviewing federal court must nevertheless examine Supreme Court precedent to determine whether the state court reasonably applied federal law. Early v. Packer, 537 U.S. 3, 8 (2003). The United States Supreme Court has expressly held that citation to federal law is not required and that compliance with the habeas statute "does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.
A state court's decision is "contrary to" federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza, 540 U.S 12, 14 (2003) (citations omitted); Williams v. Taylor, 529 U.S. 362, 411 (2000).
A state court decision involves an "unreasonable application of" federal law if the court identifies the correct legal rule, but unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 405; Brown v. Payton, 544 U.S. 133, 141 (2005). An incorrect application of federal law does not satisfy this standard. Yarborough v. Alvarado, 541 U.S. 652, 665-66 (2004) (stating that "[r]elief is available under § 2254(d)(1) only if the state court's decision is objectively unreasonable.") "It is not enough that a federal habeas court, in its independent review of the legal question," is left with the "firm conviction" that the state court ruling was "erroneous." Id.; Andrade, 538 U.S. at 75. Rather, the petitioner must establish that the state court decision is "objectively unreasonable." Middleton v. McNeil, 541 U.S. 433 (2004); Andrade, 538 U.S. at 76.
Where a state court decision is deemed to be "contrary to" or an "unreasonable application of" clearly established federal law, the reviewing court must next determine whether it resulted in constitutional error. Benn v. Lambert, 283 F.3d 1040, 1052 n. 6 (9th Cir. 2002). Habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). In § 2254 proceedings, the federal court must assess the prejudicial impact of a constitutional error in a state-court criminal proceeding under Brecht's more forgiving "substantial and injurious effect" standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 24 (1967). Fry v. Pliler, ___ U.S. ___, 127 S.Ct. 2321, 2328 (2007). The Brecht harmless error analysis also applies to habeas review of a sentencing error. The test is whether such error had a "substantial and injurious effect" on the sentence. Calderon v. Coleman, 525 U.S. 141, 145-57 (1998) (holding that for habeas relief to be granted based on constitutional error in capital penalty phase, error must have had substantial and injurious effect on the jury's verdict in the penalty phase.); Hernandez v. LaMarque, 2006 WL 2411441 (N.D.Cal., Aug. 18, 2006) (finding that even if the evidence of three of petitioner's prior convictions was insufficient, petitioner was not prejudiced by the court's consideration of those convictions because the trial court found four other prior convictions which would have supported petitioner's sentence.) The Court will review Petitioner's claims under the applicable standard of review.
B. Ground One — Ineffective Assistance of Counsel
Liberally construing the Petition, Petitioner asserts that trial counsel was ineffective for failing to confer with him in person before trial and failing to inform Petitioner of counsel's theory of the defense. He also asserts that counsel failed to ask the victims questions which Petitioner requested. (docket # 6)
1. Legal Standard
The clearly established federal law governing claims of ineffective assistance of counsel is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to demonstrate ineffective assistance of counsel, a petitioner must establish that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the petitioner. Strickland, 466 U.S. 668. To be deficient, counsel's performance must be "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Counsel has no duty to raise legally frivolous claims. Jones v. Barnes, 463 U.S. 745, 751 (1983). In assessing performance, courts afford a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making decisions. Strickland, 466 U.S. at 690. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995). The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. "We ask only whether some reasonable lawyer at trial could have acted, in the circumstances, as defense counsel acted at trial." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev'd on other grounds, 525 U.S. 141 (1998).
To show prejudice, petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). The court may proceed directly to the prejudice prong. Jackson v. Calderon, 211 F.3d 1148, 1155 n. 3 (9th Cir. 2000) (citing Strickland, 466 U.S. at 697). The court, however, may not assume prejudice solely from counsel's allegedly deficient performance. Jackson, 211 F.3d at 1155; United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S.Ct. 2557, 2563 (2006) (stating that "a violation of the Sixth Amendment right to effective representation is not `complete' until the defendant is prejudiced.")
The Strickland test also applies to the a defendant who has been "represented by counsel during the plea process and enters his plea upon the advice of counsel. . . ." Hill v. Lockhart, 474 U.S. 52, 56-58 (1985). In the plea context, the prejudice prong hinges on "whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 58-59. In other words, petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59 (footnote omitted).
2. Application of Law to Petitioner's Claims
On post-conviction review, Petitioner claimed that trial counsel was ineffective for failing to confer with Petitioner and for failing to interview the victims. (Respondents' Exh. D) Petitioner challenged counsel's performance, but did not assert that counsel's allegedly deficient performance prejudiced him in any way. He did not explain how consulting with counsel in person or how asking different questions to the witnesses would have changed the outcome of his trial. (Respondents' Exh. D) The court rejected Petitioner's claims finding that Petitioner failed to establish that counsel was ineffective. (Respondents' Exh. E) As discussed below, Petitioner fails to establish that the state court's decision is contrary to or rests on an unreasonable application of Strickland.
Even assuming that trial counsel's performance was deficient based on her failure to confer with Petitioner in person and failure to ask different questions of the witnesses, Petitioner's claim fails because he has not established that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Ortiz v. 149 F.3d at 934. Petitioner does not even attempt to explain how further consultation with counsel would have changed the outcome of his trial. He does not identify any topics that he would have discussed with counsel. Similarly, although Petitioner claims that counsel failed to ask certain questions of the victims, he neither identifies those questions nor explains how asking different or additional questions would have changed the outcome of his trial.
The Court finds that Petitioner has not shown that the state court's resolution of his claim of ineffective assistance of counsel is "contrary to" or based on "an unreasonable application of" federal law. Accordingly, this claim fails.
IV. Conclusion
Based on the foregoing, Petitioner's claims are either procedurally barred or fail on the merits.
Accordingly,
IT IS HEREBY RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus (docket # 6) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Failure to file timely objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See, Rule 72, Federal Rules of Civil Procedure.