Opinion
CV-21-02162-PHX-SPL (ESW)
08-24-2022
Brian Woolsey, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Arizona state prisoner Brian Woolsey's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). The undersigned has reviewed the parties' briefing (Docs. 1, 14, 20), and for the reasons explained herein, it is recommended that the Court deny habeas relief. The undersigned further recommends that the Court deny Petitioner's request for an evidentiary hearing.
I. BACKGROUND
On June 6, 2017, Petitioner pled guilty in the Superior Court of Arizona in and for Maricopa County to two counts of sexual conduct with a minor (teacher-student relationship) and two counts of attempt to commit sexual conduct with a minor (teacherstudent relationship). (Doc. 14-1 at 15). The trial court accepted Petitioner's guilty pleas. (Id. at 64-65). The trial court sentenced Petitioner to a total of twelve years in prison, to be followed by lifetime probation. (Id. at 68-74).
On April 18, 2018, Petitioner filed an of-right Notice of Post-Conviction Relief (“PCR”). (Id. at 81). The trial court appointed PCR counsel, who could not find any colorable claims. (Id. at 96-98, 109-13). On July 12, 2019, Petitioner filed a pro se PCR Petition. (Id. at 121-35). Following briefing, the trial court summarily dismissed the PCR Petition. (Id. at 178-80). The trial court denied Petitioner's motion for rehearing. (Id. at 189). In a December 15, 2020 decision, the Arizona Court of Appeals denied relief. (Doc. 14-2 at 18-21).
Petitioner filed another PCR Notice on Dec. 2, 2021. (Id. at 25-27). The trial court found that Petitioner's filing was untimely and dismissed the matter. (Id. at 29-31). In February 2022, the trial court denied Petitioner's request for an extension of the time to seek further review by the Arizona Court of Appeals. (Id. at 36).
Petitioner timely initiated this federal habeas proceeding in December 2021. (Doc.
1). As detailed in the Court's Screening Order, Petitioner raises two grounds for relief:
In Ground One, Petitioner alleges that his Fifth, Sixth, and Eighth Amendment rights were violated “when the Court handed down a sentence that exceeded statutory limitations.” In Ground Two, Petitioner alleges that his Sixth and Fourteenth Amendment rights were violated “when his counsel was ineffective (a) at sentencing and (b) by failing to conduct an adequate pretrial investigation.”(Doc. 7 at 1-2). The Court required Respondents to file an answer. (Id. at 2). Respondents filed a Limited Answer (Doc. 14) on May 12, 2022. On August 9, 2022, Petitioner filed a Reply (Doc. 20). In Section II below, the undersigned concludes that Ground One and the first subsection of Ground Two are procedurally defaulted. Section III below explains that the second subsection of Ground Two is without merit. Finally, Section IV explains the undersigned's recommendation that the Court deny Petitioner's request for an evidentiary hearing.
II. GROUND ONE AND THE FIRST SUBSECTION OF GROUND TWO ARE PROCEDURALLY DEFAULTED
A. Legal Standards
1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
To properly exhaust state remedies, the prisoner must have afforded the state courts the opportunity to rule upon the merits of his federal constitutional claims by “fairly presenting” them to the state courts in a procedurally appropriate manner. Castille v. Peoples, 489 U.S. 346, 349 (1989). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005).
“[T]o 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). Claims that have been presented to the trial court, but not to the Arizona Court of Appeals are not exhausted. Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) (in noncapital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them”) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Schlup v. Delo, 513 U.S. 298, 321 (1995). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Id. at 327.
B. Ground One
In Ground One, Petitioner alleges that his Fifth, Sixth, and Eighth Amendment rights were violated “when the Court handed down a sentence that exceeded statutory limitations.” (Doc. 1 at 5). Respondents accurately state that Petitioner's PCR Petition filed in the trial court does not raise the claim contained in Ground One. (Doc. 14 at 23). Petitioner only raised the following three claims in his PCR Petition: (i) the State had no jurisdiction to prosecute due to Fourth and Fifth Amendment violations; (ii) the State failed to prove all elements of the charges made and used elements known to be false in the indictment; and (iii) Petitioner's defense counsel was ineffective. (Doc. 14-1 at 125).
In his Reply in support of the PCR Petition, Petitioner asserted that the trial court made a “sentencing error” that constituted an “abuse of discretion [that] should have been objected to by [Petitioner's] counsel.” (Id. at 174-75). Yet “an issue raised for the first time in a reply brief is waived.” State v. Ruggiero, 120 P.3d 690, 695 n.2 (Ariz.Ct.App. 2005); see also State v. Lopez, 221 P.3d 1052, 1054 (Ariz.Ct.App. 2009) (rule that defendant waives claims raised for first time in reply brief applies to Rule 32 proceedings). Further, in alleging a “sentencing error,” Petitioner did not reference federal law.
While a petitioner is not required to recite “book and verse on the federal constitution,” Picard, 404 U.S. at 277-78 (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state law claim was made.” Anderson, 459 U.S. at 6. “Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005); see also Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) (“[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.”). The undersigned finds that Petitioner failed to fairly present Ground One as a federal claim to the trial court.
It is noted that Petitioner's Petition for Review filed in the Arizona Court of Appeals states: “[a]s to the improper sentencing, the U.S. Constitution has long forbidden laws that punish persons retroactively-example post facto (Article 1, § 9, Clause 3; Article 1, § 10, Clause 1). The court abused its discretion by ignoring this foundational precept.” (Doc. 14-2 at 8). PCR claims of “Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). However, a petitioner generally cannot exhaust a habeas claim by circumventing a state's lower courts and going directly to the state's higher courts. See Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004) (habeas claim presented by petitioner to state supreme court was unexhausted because the petitioner did not fairly present the claim to the state's court of appeals); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, [the Supreme Court has concluded] that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”). Therefore, even if Petitioner did fairly present Ground One as a federal claim in his Petition for Review filed in the Arizona Court of Appeals, Petitioner failed to exhaust the claim as he did not fairly present it to the trial court.
The undersigned finds that Respondents correctly assert (Doc. 14 at 23) that Ground One is unexhausted. If Petitioner returned to state court and presented Ground One in a PCR Petition, the PCR Petition would be untimely and successive under adequate and independent state procedural rules. See Ariz. R. Crim. P. 33.2(a)(3) and 33.4(b)(3). A state post-conviction action is futile where it is time-barred. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997). The undersigned finds that Ground One is procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
C. First Subsection of Ground Two
Ground Two of the Petition presents two ineffective assistance of counsel claims. Petitioner alleges that his Sixth and Fourteenth Amendment rights were violated “when his counsel was ineffective (a) at sentencing and (b) by failing to conduct an adequate pretrial investigation.” (Doc. 1 at 7). In his of-right PCR proceeding, Petitioner alleged that his “counsel was ineffective by his lack of subjecting the State's case to meaningful adversarial testing.” (Doc. 14-1 at 125). Petitioner raised “a few examples of counsel's ineffectiveness”:
A. counsel “failed to file any pretrial motions, including a challenge of indictments for lack of corroborating evidence, or a challenge of the warrantless arrests and subsequent interview of Mrs. Woolsey”;
B. counsel “never investigated and challenged due process violations of unlawful arrest, illegal search and seizures, unconstitutional search warrant and lack of container warrant, and involuntary statement and spousal privilege”;
C. “counsel did not challenge the charges of the plea as having zero corroborative evidence beyond the word of the accusing witness, nor the [Dangerous Crimes Against Children] enhancements that were false, yet attached, a fundamental error”;
D. counsel “did not challenge the insufficiency of evidence, nor did he argue that items of evidence do not show guilt beyond a reasonable doubt, i.e., that sexual conduct ever happened as accused”;
E. counsel “interviewed no witnesses including key state witnesses such as Mrs. Woolsey or police”;
F. counsel “did no investigation into mitigating evidence”;
G. counsel “had no meaningful input into Mr. Woolsey's settlement and change of plea hearings, and did not attend the pre-sentence report interview, nor did he make Mr. Woolsey aware of the incorrect information on presentence report.”(Id. at 134-35). The PCR Petition asserts that “[e]ach of the above deficiencies meet the first prong of Strickland. Issues E, D, and F meet the second, or prejudice prong. [Petitioner], if not for counsel's deficient performance, would not have signed a plea . . . With both prongs of Strickland met, grounds for ineffective assistance of counsel have been shown . . . .” (Id. at 135). In his Petition for Review, Petitioner asserted that “the trial court did not remedy ineffective assistance of counsel to not fully investigate the case and indictment by trial counsel.” (Doc. 14-2 at 8). Petitioner asserted to the Arizona Court of Appeals that both prongs of the Strickland test were met “for defense counsel not doing due diligence and allowing Defendant to enter plea under false pretense.” (Id. at 7).
The undersigned finds that Respondents are correct that Petitioner did not fairly present to both the trial court and Arizona Court of Appeals a claim that Petitioner's counsel was ineffective in connection with sentencing. (Doc. 14 at 24). “[ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). “As a general matter, each ‘unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (alteration in original). The undersigned finds that the claim is unexhausted and procedurally defaulted for the same reasons that Ground One is procedurally defaulted. However, the undersigned finds that Petitioner exhausted in the state courts a claim that his defense counsel was ineffective for failing to conduct an adequate pretrial investigation. Liberally construed, that claim is raised in the second subsection in Ground Two of the Petition. (Doc. 1 at 7). Section III below explains that it is without merit.
D. Petitioner's Procedural Defaults are Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
Petitioner's status as a pro se litigant does not exempt Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause). The undersigned finds that Petitioner has failed to establish that his procedural default is “due to an external objective factor that cannot fairly be attributed to him.” Smith, 510 F.3d at 1146 (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural default. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327. To the extent Petitioner argues that the miscarriage of justice exception should be applied to excuse his procedural defaults, Petitioner does not proffer any new evidence to support actual innocence. See Schlup, 513 U.S. at 324 (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.”). The undersigned does not find that the record and pleadings in this case contain “evidence of innocence so strong that [the Court] cannot have confidence in the outcome of the trial.” Id. at 316. Accordingly, the undersigned does not find that the miscarriage of justice exception applies to excuse Petitioner's procedural defaults. It is recommended that the Court dismiss Ground One and the first subsection of Ground Two with prejudice.
Moreover, it is unclear “whether the Schlup actual innocence gateway always applies to petitioners who plead guilty.” Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (“We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas petitioner].”). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent case law that arguably rendered the defendant's acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F.3d 1131, 1134-35 (9th Cir. 2013); United States v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
III. THE SECOND SUBSECTION OF GROUND TWO IS MERITLESS
A. Reviewing Habeas Claims on the Merits
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. [R]esulted 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
2. [R]esulted 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); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Richter, 562 U.S. at 99.
As to the first entitlement to relief explained above, “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to the second entitlement to relief explained above, factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). That is, a state court's determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of the state court's decision. Richter, 562 U.S. at 101; Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
B. Proving Ineffective Assistance of Counsel Under Strickland v. Washington , 466 U.S. 668 (1984)
The “clearly established federal law” for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). In the habeas context, the issue is whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the [ineffective assistance of counsel] claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted).
In assessing the performance factor of Strickland's two-part test, judicial review “must be highly deferential” and the court must try not “to second-guess counsel's assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a 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. In other words, it must be shown that the “likelihood of a different result [is] substantial, not just conceivable.” Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
C. Analysis
As mentioned, the second subsection of Ground Two asserts that Petitioner's defense counsel “fail[ed] to conduct an adequate pretrial investigation.” (Doc. 1 at 7). This claim is vague and conclusory as Petitioner does not support it with additional factual allegations. In support of Ground Two, Petitioner merely states:
(1) The Petitioner's counsel did not recognize that according to the victim's birthdate, cited four times on the State's plea agreement and signed by both the State and Petitioner, the final count of “attempt to commit sexual conduct with a minor” was not a crime, as the victim was 18 years old at the time (to wit: victim's birthDated: 6/6/1994; date of crime: on or between 8/1/2012 and 8/31/2012). The victim was several months over 18 by this time. (2) Petitioner's counsel did not object to the court's vague and impossible aggravating factor for Count 2.(Id.). “It is well-settled that ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)); see also Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (vague or conclusory claims without supporting factual allegations warrant summary dismissal of § 2255 motion).
In denying relief, the Arizona Court of Appeals found that the trial court “did not abuse its discretion by finding that [Petitioner's] conclusory allegations of ineffective assistance of counsel did not establish a colorable claim.” (Doc. 14-2 at 20). Although the Arizona Court of Appeals' decision does not reference Strickland, AEDPA deference “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2003) (emphasis in original).
Defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. However, “the duty to investigate and prepare a defense is not limitless: it does not necessarily require that every conceivable witness be interviewed[.]” Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) (internal quotation marks and citation omitted). The Supreme Court has recognized that the duty to investigate does not require defense counsel “to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 382-83 (2005). In assessing the adequacy of an attorney's investigation, “every effort [must] be made to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689. Thus, a court must “conduct an objective review of the attorney's performance, measured for ‘reasonableness under prevailing professional norms.'” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688). This includes a “context-dependent consideration of the challenged conduct as seen ‘from counsel's perspective at the time.'” Id. (quoting Strickland, 466 U.S. at 689).
“[I]t is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 698-699 (2002) (stating that a federal habeas petitioner “must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.”). Here, Petitioner's conclusory allegations “fall far short of stating a valid claim of constitutional violation.” Jones, 66 F.3d at 205.
Petitioner has not proffered any argument showing that the Arizona Court of Appeals' rejection of his ineffective assistance of counsel claim is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. Petitioner's vague and conclusory claim that his defense counsel failed to conduct an adequate investigation does not satisfy either prong of the Strickland test. See Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996) (defendant “fail[ed] to explain what compelling evidence additional interviews would have unearthed or to explain how an investigation of aggravation evidence would have negated the evidence of the multiple gunshot wounds.”); Hendricks, 70 F.3d at 1042 (“Absent an account of what beneficial evidence investigation into any of these issues would have turned up, [defendant] cannot meet the prejudice prong of the Strickland test.”). The undersigned recommends that the Court deny the second subsection of Ground Two.
IV. PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING
In the Petition, Petitioner requests an evidentiary hearing. (Doc. 1 at 15). AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Ground One and the first subsection of Ground Two of the Petition (Doc. 1) be DISMISSED WITH PREJUDICE and that the second subsection of Ground Two be denied.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's request for an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of two claims in the Petition is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claim for relief.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen 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. Failure to file timely objections to any factual determinations of the Magistrate Judge may 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).