Opinion
CV-21-08142-PCT-DLR (JZB)
08-09-2023
Edmund Herald Adams, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
Petitioner Edmund Herald Adams has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 2.)
I. Summary of Conclusion.
Petitioner was convicted in Mohave County Superior Court, case #CR2013-00484, of three counts of sexual conduct with a minor, one count of child molestation, 16 counts of sexual exploitation of a minor, one count of secretly recording another person, and one count of weapons misconduct. Petitioner was sentenced to a term of imprisonment exceeding 500 years. In his habeas petition, Petitioner raises 15 grounds for relief. However, Grounds 1-11 and 13-15 are untimely and Petitioner is not entitled to equitable tolling. Ground 12 fails on the merits. Accordingly, the Court will recommend that the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.
II. Background.
A. Facts.
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness). Petitioner was charged and convicted of “16 counts of sexual exploitation of a minor, three counts of sexual conduct with a minor, and one count each of molestation of a child, surreptitiously recording another person without the person's consent, and misconduct involving weapons.” (Doc. 10-5 at 4, Ex. I.)
While this matter involves many victims, brothers “N” and “B” were the only victims whose identities were known, and they were the only victims who testified at trial. Adams was a friend of N's and B's family, and N and B frequently visited Adams in his home. Adams's roommate found three digital video discs in Adams's home each containing a different movie of Adams with a male child. The first disc contained a movie of Adams engaging in sexual conduct with an unidentified boy. The second disc contained a movie of Adams engaging in sexual conduct with N. The third disc contained a movie that showed Adams placing his video camera in a bathroom in his home pointed towards the bathtub; it then showed Adams undressing B, taking him to the bathtub, touching B's buttocks repeatedly and then turning B to expose his genitals to the camera. Adams committed the offenses against N when he was 12 to 14 years old and the offenses against B when he was ten to 12 years old.
Investigators found ten digital movies on Adams's laptop computer recovered from his home. Those movies depicted unidentified prepubescent children engaged in exploitive exhibition and other sexual conduct; all but two of the children were boys. Finally, Adams also possessed a number of firearms even though he was a prohibited possessor.
The jury convicted Adams on the charges listed above. The superior court sentenced him to an aggregate term of 626.5 years' imprisonment.(Doc. 10-5 at 4-5, Ex. I.)
B. Direct Appeal.
On December 30, 2014, Petitioner's counsel filed a 70-page brief raising eight claims. (Doc. 10-4 at 20-89, Ex. G.) On June 30, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 10-5 at 3, Ex. I.) On February 9, 2016, the Arizona Supreme Court denied Petitioner's petition for review, and on March 17, 2016, the mandate issued. (Id. at 2.)
C. First Post-Conviction Relief Proceedings.
On February 23, 2016, Petitioner filed his first notice of post-conviction relief. (Doc. 10-5 at 20, Ex. J.) On September 30, 2016, Petitioner's counsel filed a 27-page PCR petition. (Doc. 10-5 at 24-50, Ex. K.) On March 6, 2017, the PCR court found that Petitioner raised no claims or issues meriting relief and dismissed the proceeding. (Doc. 10-5 at 61, Ex. M.)
On April 7, 2017, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 10-5 at 65, Ex. N.) On March 19, 2018, the Arizona Court of Appeals granted review and denied relief. (Doc. 10-5 at 89, Ex. O.) On June 14, 2018, the Arizona Supreme Court dismissed Petitioner's petition for review. (Doc. 10-5 at 94, Ex. P.) On September 14, 2018, the mandate issued. (Doc. 10-5 at 86, Ex. O.)
D. Second Post-Conviction Relief Proceedings.
While his first post-conviction relief proceeding was still pending, Petitioner filed a second notice of post-conviction relief on May 1, 2017, requesting relief based upon May v. Ryan. (Doc. 10-5 at 98, Ex. Q.) On July 6, 2017, the PCR court dismissed the petition finding “Defendant has failed to raise any colorable claim” for relief. (Doc. 10-5 at 103, Ex. R.)
May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz. 2017), reversed by May v. Shinn, 954 F.3d 1194 (9th Cir. 2020); May v. Ryan, 807 Fed. App'x. 632 (9th Cir. 2020).
On February 20, 2018, the Arizona Court of Appeals granted review but denied relief. (Doc. 10-5 at 106, Ex. S.) On April 6, 2018, the mandate for this proceeding issued. (Id. at 105.)
E. Third Post-Conviction Relief Proceedings.
On August 20, 2018, Petitioner filed a third notice of post-conviction relief. (Doc. 10-6 at 2, Ex. U.) On August 7, 2019, Petitioner's counsel filed a notice stating there were no “meritorious” issues to raise for relief. (Doc. 10-6 at 11, Ex. V.) On October 28, 2019, Petitioner filed a pro se PCR petition. (Doc. 10-6 at 29, Ex. W.) On February 11, 2020, the PCR court dismissed the petition. (Doc. 10-6 at 115, Ex. Y.)
Petitioner raised five claims. Petitioner alleged that newly-discovered evidence regarding the State's expert witness (Carli Moncher) resulted in a fraud upon the court. (Doc. 10-6 at 30-34, Ex. W.) He also alleged that H.B. 2283 - which changed the law regarding “sexual interest” - was a substantive change in the law. (Id. at 35-39.) Lastly, he claimed the enhancement of his sentence as a dangerous crime against children was illegal (id. at 39-40) and that counsel provided ineffective assistance by failing to raise these claims (id. at 40).
On June 16, 2020, the Arizona Court of Appeals granted review but denied relief. (Doc. 10-6 at 119, Ex. Z.) On August 11, 2020, the mandate issued. (Id. at 118.)
III. Petitioner's Habeas Petition.
On June 3, 2021, Petitioner mailed the Petition. (Doc. 2 at 22.) The Court filed the Petition on June 7, 2021. (Doc. 2 at 1.) The Court summarized Petitioner's claims as follows:
Ground 1: Adams claims the trial court's denial of substitution of counsel, where an irreconcilable conflict had arisen between Adams and his appointed counsel, violated Adams' Sixth Amendment rights;
Ground 2: Adams claims the State improperly introduced evidence that he was required to register as a sex offender, and was therefore a convicted sex offender, in violation of his Fifth and Fourteenth Amendment rights;
Ground 3: Adams claims there was insufficient evidence that he knowingly possessed child pornography found on his hard drive, in violation of his Sixth and Fourteenth Amendment rights;
Ground 4: Adams claims there was insufficient evidence that the unidentified persons were under the age of15 to support several of the convictions for sexual exploitation of a minor under the age of 15, in violation of his Sixth and Fourteenth Amendment rights;
Ground 5: Adams claims the trial court committed fundamental error by failing to instruct the jury that a defendant must knowingly possess images of an actual child under the age of 15, in violation of his Sixth and Fourteenth Amendment rights;
Ground 6: Adams claims that where child pornography was downloaded and accessed at the same time (and never viewed by Petitioner), the convictions and ten consecutive 28-year sentences are multiplicitous, in violation of the Double Jeopardy Clause of the Fifth Amendment;
Ground 7: Adams claims the sentences imposed violate the Eighth Amendment's prohibition against cruel and unusual punishment;
Ground 8: Adams claims there was insufficient evidence to support finding the aggravating factor that the offenses were committed in an especially heinous, cruel, or depraved manner;
Ground 9: Adams claims trial and appellate counsel failed to provide effective assistance of counsel by failing to object to or address the unconstitutional jury instruction under Arizona Revised Statues (“A.R.S.”) § 13-3556;
Ground 10: Adams claims the trial court improperly instructed the jury that it could infer that a participant was a minor if the visual depiction or live act through its title, text or visual representation depicted the participant as a minor, thereby violating his right to due process;
Ground 11: Adams claims trial counsel was ineffective due to cumulative errors, in violation of his Sixth Amendment rights;
Ground 12: Adams claims the State's expert witness committed fraud during her testimony at his trial, violating his right to due process;
Ground 13: Adams claims A.R.S. § 13-1407(e) violates the Fifth, Sixth, and Fourteenth Amendments;
Ground 14: Adams claims A.R.S. § 13-705 violates the Fifth, Sixth, and Fourteenth Amendments because it is vague and overbroad; and
Ground 15: Adams claims the enactment of Arizona House Bill 2283 is a significant change in the law.(Doc. 5 at 2-3.)
On August 17, 2021, Respondents filed a Limited Answer. (Doc. 10.) On November 30, 2021, the Court granted Petitioner's request for an extension of time to file a Reply. (Doc. 21.) Petitioner did not file a Reply.
On June 24, 2022, the Court directed Respondents to file a brief addressing the question of when Petitioner's first post-conviction matter concluded. (Doc. 23.) Respondents filed their Supplemental Answer on July 11, 2022. (Doc. 24.) Petitioner did not file a Reply. Pursuant to the Court direction, Respondents filed another Supplemental Answer on January 30, 2023, addressing the apparent conflict in their position with Celaya v. Ryan, 497 Fed.Appx. 744 (9th Cir. 2012) (unpublished) and Ariz. Rev. Stat. 12-120.24. (Docs. 25, 26.) Petitioner again did not file a Reply.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.
IV. Statute of Limitations -- Grounds 1-11 and 13-15.
Grounds 1-11 raise claims directly related to his trial. Grounds 13 and 14 allege A.R.S. §§ 13-1407 and 13-705 are unconstitutional. Ground 15 alleges H.B. 2283 is a change in the law that rendered Petitioner's convictions unconstitutional. See H.B. 2283 2018 Ariz. Sess. Laws, Ch. 266, §§ 1-3 (2d Reg. Sess.) (effective August 3, 2018) (eliminating the affirmative defense of lack of sexual motivation in child molestation cases). Regarding Counts 13-15, changes in Arizona law do not affect Petitioner's AEDPA triggering date. See 28 U.S.C. 2244(d)(1)(C) (“[t]he limitation period shall run from the latest of... the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”); Sprouse v. Ryan, 2019 WL 1465511, at *2 (D. Ariz. 2019) (finding similar claims untimely). Ground 12 raises a claim regarding newly-discovered evidence brought in Petitioner's third PCR proceeding. This ground will be considered separately.
A. Time Calculation.
The AEDPA imposes a one-year limitation period, which begins to run “from the latest of. . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
After Petitioner was convicted and sentenced, Petitioner filed a direct appeal. (Doc. 10-4 at 20-89, Ex. G.) On June 30, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences, (doc. 10-5 at 3, Ex. I), and on February 9, 2016, the Arizona Supreme Court denied Petitioner's petition for review (id. at 2). Petitioner's direct appeal, therefore, concluded on May 9, 2016, after the expiration of the ninety (90) day period to file a petition for certiorari from the Supreme Court of the United States. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“[T]he period of ‘direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [90-day] period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.”). The habeas petition was due one year later, absent statutory or equitable tolling, for Grounds 1-11 and 13-15.
B. Statutory Tolling.
The one-year limitations period is statutorily tolled for the time period “during which a properly filed application for State post-conviction or other collateral review ... is pending.” 28 U.S.C. § 2244(d)(2).
On February 23, 2016, before his direct appeal was final, Petitioner filed a timely notice of post-conviction relief and subsequent PCR petition. (Doc. 10-5 at 20, Ex. J; Doc. 10-5 at 24-50, Ex. K.) On March 6, 2017, the PCR court dismissed the proceeding. (Doc. 10-5 at 61, Ex. M.) On March 19, 2018, the Arizona Court of Appeals granted review but denied relief. (Doc. 10-5 at 89, Ex. O.) On June 14, 2018, the Arizona Supreme Court dismissed Petitioner's petition for review. (Doc. 10-5 at 94, Ex. P.)
Because his first PCR proceeding “ha[d] achieved final resolution through the State's post-conviction procedures,” Carey v. Saffold, 536 U.S. 214, 220 (2002), and nothing remained pending, Petitioner's statute of limitations began running the next day on June 15, 2018. Melville v. Shinn, 68 F.4th 1154, 1159-1161 (9th Cir. 2023) (holding that a petition for post-conviction relief in Arizona remains “pending” until no “state avenue for relief remain[s] open, whether or not [the prisoner takes] advantage of it.”); see also Lawrence v. Florida, 549 U.S. 327, 332 (2007) (Clarifying that “[s]tate review ends when the state courts have finally resolved an application for state postconviction relief. After the State's highest court has issued its mandate or denied review, no other state avenues for relief remain open.”); Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007) (“It is clear to us that the collateral proceeding “was determined” on February 20, 2003, when the Arizona Supreme Court denied Hemmerle's petition for review.”); Baker v. Ryan, No. CV-19-02852, 2021 WL 717253, at *3 (D. Ariz. February 24, 2021) (stating that “the date of the Arizona Supreme Court's decision concludes the postconviction process and terminates the period of statutory tolling”).
Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (concluding that under AEDPA, the limitations period begins to run on the date after the triggering event pursuant to Federal Rule of Civil Procedure 6(a)).
The statute of limitations ran for 66 days, until August 20, 2018, when Petitioner filed a third notice of post-conviction relief and, subsequent, properly-filed PCR petition alleging a newly-discovered evidence claim. (Doc. 10-6 at 2, Ex. U.) On February 11, 2020, the PCR court dismissed the petition, (doc. 10-6 at 115, Ex. Y), and the Arizona Court of Appeals denied relief on June 16, 2020 (doc. 10-6 at 119, Ex. Z). Petitioner did not request reconsideration of the court's ruling and no extension of time for the same was granted. Further, Petitioner did not file a petition for review with the Arizona Supreme Court. Thus, because his third PCR proceeding had achieved final resolution and nothing remained pending, the statute of limitations began running again the next day on June 17, 2020, and expired 299 days later. Melville, 68 F.4th at 1159-1161; see also Lawrence, 549 U.S. at 332; Hemmerle, 495 F.3d at 1077. Petitioner's habeas petition was due April 12, 2021, and he filed his habeas petition on June 3, 2021. As such, Grounds 111 and 13-15 set forth in Petitioner's habeas petition are untimely absent any further tolling.
Petitioner's second post-conviction relief proceedings were initiated and dismissed while his first post-conviction relief proceedings remained pending. Therefore, these proceedings provide no additional tolling of the statute of limitations period.
C. Equitable Tolling.
“A petitioner who seeks equitable tolling AEDPA's 1-year filing deadline must show that (1) some ‘extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Hollandv. Florida, 560 U.S. 631, 649 (2010)). The Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that “the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
Here, Petitioner argues that he “was denied meaningful access to the courts” due to the lack of legal materials and legal assistance available to inmates. (Doc. 2 at 22; Doc. 2-1 at 4-5.) While in some cases, inadequate legal materials can be an “impediment” that justifies a late filing, or can form the basis of equitable tolling, see Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (finding that unavailability of a copy of the AEDPA in a prison law library could be grounds for equitable tolling), Petitioner has not pointed to any specific materials to which he did not have access. Cf. Roy v. Lampert, 465 F.3d 964, 974 (9th Cir. 2006) (finding that lack of access to AEDPA materials and Oregon law books may be an extraordinary circumstance); Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006) (finding that lack of access to Spanish language legal materials or assistance could entitle habeas petitioner to equitable tolling). Rather, Petitioner's complaints are generalized, and he does not show how his lack of legal resources prevented him from filing a timely federal habeas petition. In contrast, Petitioner indicates that the prison library is open Monday through Friday, 20 hours per week, and Petitioner has actively initiated several state court post-conviction relief proceedings during the limitations period.
After Petitioner's direct appeal concluded and the limitations period began, Petitioner initiated three post-conviction relief proceedings - taking each proceeding to its final resolution through the appellate courts. (Doc. 10-5, Ex. J; Doc. 10-5, Ex. Q; Doc. 10-6, Ex. U.)
Furthermore, the lack of legal assistance available to inmates, lack of legal training, and unfamiliarity with the law cannot excuse his failure to comply with the statute of limitations. A “lack of legal knowledge, and need for some assistance to prepare a habeas petition are not extraordinary circumstances to warrant equitable tolling of an untimely habeas petition.” Baker v. Cal. Dep't. of Corr., 484 Fed.Appx. 130, 131 (9th Cir. 2012); see Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); Dunnings v. Shinn, No. CV-19-03286-PHX-DGC (DMF), 2020 WL 4220076, at *2 (D. Ariz. July 23, 2020); Trevizo v. Borders, No. 1:16-cv-01845-DAD-SKO HC, 2018 WL 3017547, at *12 (E.D. Cal. June 14, 2018) (“[A] lack of legal assistance or lack of adequate legal assistance is not grounds for equitable tolling, because there is no right to legal assistance in post-conviction relief.”).
Thus, Petitioner has failed to meet his burden of showing extraordinary circumstances or reasonable diligence that would justify equitable tolling.
D. Actual Innocence.
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 398 (2013). To establish a “credible” claim of actual innocence, a petitioner must present “new reliable evidence” and “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). See also Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that in light of new evidence, it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.” (cleaned up)).
The Court having reviewed Petitioner's habeas petition and supplement, as well as, the documents in this case, finds Petitioner fails to present new, reliable evidence of actual innocence required to pass through the Schlup gateway. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence ... that was not presented at trial.'”).
As noted earlier in this discussion, Petitioner alleges an independent constitutional violation related to newly-discovered evidence in Ground 12, which will be addressed infra. (Doc. 2 at 17.) In Ground 12, Petitioner argues that the State's expert witness committed fraud during her testimony at his trial. (Id.) Significantly, Petitioner never alleges that this newly-discovered evidence establishes actual innocence. Rather, Petitioner claims that “[i]f this evidence had been uncovered earlier [Petitioner] could have impeached the State's expert, whom the jury relied on to convict him.” Petitioner claims that this evidence “raises serious concerns regarding the [jury's] verdict and [his] right to a fair trial .. ..” (Id.)
V. Merits -- Ground 12
A. Standard of Review
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 576 U.S. 257, 268-70 (2015); Musladin v. Lamarque, 555 F.3d 834, 838 (9th Cir. 2009). The AEDPA requires that the habeas court review the “last reasoned decision” from the state court, “which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue.” Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000)).
Clearly established federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal citations and quotations omitted). See also Arrendondo v. Neven, 763 F.3d 1122, 1133-34 (9th Cir. 2014).
Recognizing the duty and ability of our state-court colleagues to adjudicate
claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fair minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “If this standard is difficult to meet”-and it is- “that is because it was meant to be.” Id. at 102. We will not lightly conclude that a State's criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. (internal quotation marks omitted).Burt v. Titlow, 571 U.S. 12, 20 (2013).
A state court decision is contrary to federal law if it applied a rule contradicting the governing law as stated in United States Supreme Court opinions, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Brown v. Payton, 544 U.S. 133, 141 (2005).
A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies a governing rule but applies it to a new set of facts in a way that is objectively unreasonable, or if it extends, or fails to extend, a clearly established legal principle to a new set of facts in a way that is objectively unreasonable. See McNeal v. Adams, 623 F.3d 1283, 1287-88 (9th Cir. 2010). The state court's determination of a habeas claim may be set aside under the unreasonable application prong if, under clearly established federal law, the state court was “unreasonable in refusing to extend [a] governing legal principle to a context in which the principle should have controlled.” Ramdass v. Angelone, 530 U.S. 156, 166 (2000). However, the state court's decision is an unreasonable application of clearly established federal law only if it can be considered objectively unreasonable. See, e.g., Renico v. Lett, 130 S.Ct. 1855, 1862 (2010). An unreasonable application of law is different from an incorrect one. See id.; Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005). “That test is an objective one and does not permit a court to grant relief simply because the state court might have incorrectly applied federal law to the facts of a certain case.” Adamson v. Cathel, 633 F.3d 248, 255-56 (3d Cir. 2011). See also Howard v. Clark, 608 F.3d 563, 567-68 (9th Cir. 2010).
Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Brumfield v. Cain, 576 U.S. 305, 322 (2015). The “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Phillips v. Ornoski, 673 F.3d 1168, 1202 n.13 (9th Cir. 2012).
Additionally, the United States Supreme Court has held that, with regard to claims adjudicated on the merits in the state courts, “review under § 2254(d)(1) 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, 180 (2011). See also Murray, 745 F.3d at 998. Pursuant to § 2254(d)(2), the “unreasonable determination” clause, “a state-court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Clark v. Arnold, 769 F.3d 711, 72425 (9th Cir. 2014) (quoting Burt, 571 U.S. at 20).
If the Court determines that the state court's decision was an objectively unreasonable application of clearly established United States Supreme Court precedent, the Court must review whether Petitioner's constitutional rights were violated, i.e., the state's ultimate denial of relief, without the deference to the state court's decision that the AEDPA otherwise requires. See Lafler v. Cooper, 566 U.S. 156, 170-72; Panetti v. Quarterman, 551 U.S. 930, 953-54 (2007). Additionally, the petitioner must show the error was not harmless: “For reasons of finality, comity, and federalism, habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.'” Davis, 576 U.S. at 266-67.
B. Discussion.
In Ground 12, Petitioner claims the State's expert witness committed fraud during her testimony at his trial, violating his right to due process. Specifically, Petitioner alleges that newly-discovered evidence shows that Carli Moncher, the State's expert, was indicted with 24 felony counts and pleaded guilty. Petitioner contends that “[i]f this evidence had been uncovered earlier [Petitioner] could have impeached the State's expert, whom the jury relied on to convict him.” Petitioner claims that this evidence “raises serious concerns regarding the [jury's] verdict and [his] right to a fair trial ...” (Id.)
Petitioner presented the same claim in his third post-conviction relief proceeding. (Doc. 10-6 at 29, Ex. W.) On February 11, 2020, the PCR court found the claim “not colorable,” stating,
The Defendant argues that Moncher committed fraud upon the Court by lying about her level of compensation. Her deceit was purportedly a part of an ongoing fraudulent scheme for which she was eventually prosecuted. The Defendant does not explain how Moncher's level of compensation as a “cold expert witness” -- one who took no direct part in the investigation but instead testified about general topics relating to sexual abuse -- somehow influenced the jury. He asserts with a degree of speculation about how juries find experts persuasive based on their education, training and compensation. The Defendant completely disregards the fact that the jury watched the Defendant's own “homemade movies” of him sexually abusing his victims. The amount of compensation of any expert witness arguably became irrelevant at that point.(Doc. 10-6 at 115, Ex. Y.) On June 16, 2020, the Arizona Court of Appeals granted review but summarily denied relief. (Doc. 10-6 at 119, Ex. Z.)
As the Supreme Court has observed, “[c]laims ... based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,” see Herrera v. Collins, 506 U.S. 390, 400 (1993), such as, for example, “ineffectiveness of [trial] counsel” or “withholding of evidence by the prosecution,” see Schlup, 513 U.S. at 314. “[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Herrera, 506 U.S. at 400 (internal quotation marks and citation omitted). “Newly discovered evidence is a ground for habeas relief only when it bears on the constitutionality of an appellant's conviction and would probably produce an acquittal.” Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir.1999). Federal law precludes a criminal defendant from obtaining a new trial based on newly discovered evidence unless, among other things, the evidence is “neither cumulative nor merely impeaching” and “indicate[s] that a new trial would probably result in acquittal.” United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005) (internal quotation marks and citation omitted).
The Court finds that the state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts. Initially, and as noted earlier in this Recommendation, while Petitioner couches his claim as violation of due process, he explicitly states that the new evidence could have been used solely for impeachment purposes. (Doc. 2 at 17.) He does not provide specifics regarding any “perjured testimony” or “altered documents,” and he does not claim to be innocent. (Id.) Thus, Petitioner's merely impeaching evidence is not grounds for habeas relief. See Spivey, 194 F.3d at 979; Harrington, 410 F.3d at 601. Moreover, even if he could impeach Ms. Moncher, Petitioner's claim fails due to the overwhelming evidence of guilt including “the fact that the jury watched the Defendant's own ‘homemade movies' of him sexually abusing his victims.” (Doc. 10-6 at 115, Ex. Y.) The Court will recommend that Petitioner's claim as alleged in Ground 12 be denied.
VI. Evidentiary Hearing.
The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
VII. Conclusion.
Based on the above analysis, the Court finds that Grounds 1-11 and 13-15 are untimely, and Ground 12 fails on the merits.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 2) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.