Opinion
CV-19-05771-PHX-DJH (JZB)
12-30-2021
Jordan Donald Billups, Petitioner, v. Charles L Ryan, et al., Respondents.
REPORT & RECOMMENDATION
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
Petitioner has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, “Petition.”)
I. Summary of Conclusion.
Petitioner raises six multi-faceted grounds for relief. Petitioner is not entitled to relief because those grounds are non-cognizable, without merit under 28 U.S.C. § 2254(d)(1), or procedurally defaulted without excuse. The Court therefore recommends the Petition be denied and dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
As summarized by the Arizona Court of Appeals on direct appeal:
In 2012, [Petitioner] was indicted for one count of sale or transportation of narcotic drugs, a class two felony, and two counts of misconduct involving
weapons, both class four felonies. Pursuant to Arizona Revised Statutes (“A.R.S.”) sections 13-701 (Supp. 2016), -703 (Supp. 2016), and -704 (Supp. 2016), the State gave notice ofmultiple aggravating circumstances and filed allegations of prior felony convictions and historical priors.
At trial, Agent Brendan Iver of the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified on behalf of the State. Iver testified that, while working undercover, he leased a store front in a strip mall in an area that had been “identified as a problem area.” The store, set up as a pawn shop, was open to the public and “was run like your regular business.”
On July 15, 2010, [Petitioner], a tattoo artist, entered the store and spoke to Iver about his availability to provide tattoo services. As the conversation progressed, [Petitioner] “handed [Iver] a little latex baggie with five oxycodone pills inside of it.” [Petitioner] and Iver “agreed on a price of $225 for the five pills” and Iver paid [Petitioner]. At some point during the transaction, [Petitioner] informed Iver that he “had a friend that had a shotgun,” [n.3] and Iver indicated that he would “take a look” if [Petitioner] “wanted to bring it by.” [Petitioner] then left the store.
[n.3] Iver testified that [Petitioner] later told him the shotgun was his and that “[h]e needed it for home protection.” At sentencing, defense counsel indicated that the gun belonged to someone else who “owed [Petitioner] money for [a] tattoo.”
On August 12, 2010, [Petitioner] returned to the store with a friend who was carrying a shotgun wrapped in a towel. [Petitioner] stated that his friend was carrying the shotgun because “[Petitioner] was a felon so he [could not] carry the firearm himself.” Iver and [Petitioner] agreed on a price for the shotgun [n.4], Iver gave [Petitioner] the money, and [Petitioner] left the store.
[n.4] Iver gave [Petitioner] $250 that day, with the understanding that [Petitioner] would later provide tattoo services to Iver.
On August 25, 2010, [Petitioner] again arrived at the store with a woman and a child “that [Petitioner] had stated was his daughter.” The woman carried a shotgun into the store and set it down behind the counter. [Petitioner] and Iver agreed on a price, Iver paid [Petitioner], and [Petitioner] left the store with the woman and his daughter. [Petitioner] was later arrested and indicted on the above-described charges.
In addition to Iver's testimony, the State played audio and video recordings depicting the transactions that took place between Iver and [Petitioner] on July 15, August 12, and August 25. The State also presented testimony from several other witnesses, including forensic chemist Shana Middleton, who stated that she had tested the pills [Petitioner] sold to Iver on July 15, and had identified them as oxycodone.
The jury convicted [Petitioner] on all charges.
The court sentenced [Petitioner] ¶ 16.75 years for the sale or transportation of narcotic drugs and 10 years for each count of misconduct involving
weapons, with all three sentences to run concurrently.State v. Billups, 2017 WL 3027581, at *1 (Ariz. App. July 18, 2017); Doc. 37-29.
Petitioner objects to the Arizona Court of Appeals' summary of the facts as “clearly slanted in a manner meant to uphold the convictions and which does not specifically cite to transcript testimony or evidence actually establishing the underlying facts as discussed by [Petitioner] and includes factual summation that is not clearly established from the actual transcripts.” (Doc. 44 at 2.) “In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.” Purkett v. Elem, 514 U.S. 765, 769 (1995); see 28 U.S.C. § 2254(e)(1). The petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner proffers no evidence. The Court therefore presumes this summary of the facts is correct. Id. Additionally, Petitioner argues Respondents should be required to produce the entire trial record rather than just certain portions. (Id. at 2-3.) The Court denies this request as the record is sufficient for resolution of Petitioner's claims.
B. Direct Appeal.
Petitioner raised three issues: (1) judicial bias, (2) improper aggravating factors, and (3) introduction of improper testimony warranting a mistrial. (Doc. 38-1, Ex. I, at 45-71.)
First, Petitioner argued the trial judge was biased because he mentioned his former career as a prosecutor at jury selection and at sentencing, which “indicated that he still, ‘consciously or unconsciously,' gave a great deal of weight to his former life as a prosecutor” and “suggested that he viewed himself as a continuing advocate for the prosecution.” (Id. at 54-56.)
Second, Petitioner argued the trial judge unlawfully aggravated his sentence on the basis of his “age of 35 and the sentencing philosophy that [the judge] had been ‘taught religiously' as a prosecutor . . . that incarcerated people experience some kind of change between ages 45 and 50 meaning they should be incarcerated until at least that age.” (Id. at 57-58.)
Third, Petitioner argued the judge erred by denying his motion for a mistrial on the basis that improper testimony had been introduced in violation of his right to due process. (Id. at 62.) Petitioner alleged his counsel and the prosecutor had agreed to not introduce evidence relating to his participation in an uncharged home invasion, but, despite this agreement, Agent Iver had testified to the training and knowledge he received during a “two-week home invasion school” for “undercover operations involving violent home invaders.” (Id. at 62-65.)
On July 18, 2017, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 37-29.) On February 7, 2018, it issued its mandate following the Arizona Supreme Court's denial of review. (Doc. 38-2, Ex. M, at 102.)
C. Post-Conviction Relief (“PCR”) Proceeding.
On November 8, 2017, Petitioner filed a notice of PCR. (Doc. 38-2, Ex. N, at 10406.) Appointed counsel found no colorable claim and filed a notice of completion. (Doc. 38-2, Exs. O-Q, at 108-17.) On August 28, 2018, Petitioner filed a pro se PCR petition, using the superior court's standardized form, and accompanying exhibits. (Doc. 38-3, Ex. R, at 2-84.) Petitioner checked boxes next to the following grounds for relief: introduction at trial of evidence obtained pursuant to unlawful arrest, introduction at trial of identification obtained in violation of constitutional rights, infringement of the right against self-incrimination, ineffective assistance of counsel, unconstitutional suppression of evidence by the State, use of perjured testimony by the State, newly discovered evidence, unauthorized sentence, and failure of attorney to file timely notice of appeal. (Id. at 2-3.)
Petitioner alleged a detective who testified before the grand jury “did not tell the truth [and] left out material . . . so that [the] State could get a true bill.” (Id. at 3.) Petitioner further alleged he did not receive investigative reports from “Margaret Difrank” and “Don Kingem.” (Id. at 3, 5.) Petitioner referenced his motion to remove his appointed counsel and the Arizona Commission on Judicial Conduct's order reprimanding the trial judge for his remarks at sentencing. (Id. at 4.) Petitioner alleged his legal documents had been lost while he was “in lockdown” and being transferred to a new facility. (Id.)
On December 8, 2018, the PCR court dismissed Petitioner's PCR petition. (Doc. 38-3, Ex. S, at 86-87.) It held: (1) Petitioner's claims of judicial and prosecutorial misconduct were precluded because they were adjudicated on direct appeal; (2) his “new” prosecutorial misconduct claim regarding allegedly perjured testimony at the grand jury proceeding was precluded because Petitioner had not asserted it at trial; and (3) Petitioner failed to present a “colorable” claim of ineffective assistance of counsel for failing “to present any explanation as to how trial counsel was ineffective and how [he] was prejudiced.” (Id.)
Petitioner did not seek review by the Arizona Court of Appeals.
III. Petition for Writ of Habeas Corpus.
On December 5, 2019, Petitioner placed his Petition in the prison's mailing system; on December 9, 2019, it was filed in this Court. (Doc. 1 at 13.) As summarized by the Court, the Petition raises six grounds for relief:
(1) His Fifth and Fourteenth Amendment rights to due process and an unbiased/impartial tribunal were denied. He claims the judge was not impartial, made comments “indicating his history as a prosecutor [was] informing him how to judge (Petitioner's] case,” erred in denying Petitioner's motions to disqualify or remove his defense attorney, should not have let the prosecutor oppose his motions to disqualify/remove the defense attorney, “followed [the] prosecutor[‘s] argument always,” and “allowed [police] misconduct.”
(2) His Fifth, Sixth, and Fourteenth Amendment rights were violated because the mitigation hearing was unconstitutional, the trial court found aggravating factors in violation of [Apprendi v. New Jersey, 530 U.S. 466 (2000)] and [Blakely v. Washington, 542 U.S. 296 (2004)], his attorney was ineffective, and the trial court was biased.
(3) His Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated by the use of “other act” evidence, irrelevant and prejudicial third-party acts, uncharged crimes, gang violence, and guns. Petitioner contends this unfairly prejudiced the jury and the whole trial and caused fundamental unfairness. He also claims there was police and prosecutorial misconduct, he was entrapped, his motions for a mistrial and a new attorney should have been granted, and “the prosecutor, judge[, and his] defense attorneys all were devoted to convicting [him] unethically.”
(4) His Fifth, Sixth, and Fourteenth Amendment rights to due process and the effective assistance of counsel were denied. He claims his trial and post-conviction counsel were ineffective, the trial court erred in refusing to grant Petitioner's request to remove his trial counsel, and he “would have taken the plea but for ineffectiveness.”
(5) His Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated “due to lack of jurisdiction [and] unconstitutional grand jury presentation. He also contends there was prosecutorial misconduct and his counsel or the trial court failed to provide a “complete file to [Petitioner] to prepare [his] PCR/Rule 32, despite [Petitioner's] actual innocence & newly discovered material.”
(6) His Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated “due to actual innocence/miscarriage of justice/fundamental fairness that one who is innocent is being held by the State of Arizona on an unconstitutional conviction and sentence.”(Doc. 8 at 2-3.) Petitioner was permitted to elaborate on these claims in a Supplemental Brief, filed February 1, 2021. (Doc. 37; see Doc. 14.) On April 1, 2021, Respondents filed a Limited Answer. (Doc. 38.) On June 21, 2021, Petitioner filed a Reply. (Doc. 44.)
IV. Applicable Law.
A. Standard of Review.
To obtain relief, a petitioner must show the state courts' adjudication of a claim:
(1) 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
(2) 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).
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)) (brackets omitted). The last “reasoned” state-court decision is the subject of this Court's review. Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (citing Yist v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
B. Requisites for Federal Review.
1. Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). Alleged errors of state law are not cognizable. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); A petitioner cannot “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“[A] state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). The prisoner must “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, claims of Arizona prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
3. Compliance with State Procedural Rules.
“[F]ederal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). “[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). A federal court may find an implied procedural bar “when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). To obtain review of a procedurally defaulted claim, a petitioner must show either “cause for the default and resulting prejudice” or “that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “‘Cause' . . . must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. The fundamental miscarriage of justice “exception is limited to those who are actually innocent.” Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
In Arizona, a defendant is precluded from obtaining relief “based on any ground . . . waived at trial, on appeal, or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). A claim is waived if “the defendant did not raise [it] at trial, on appeal, or in a previous collateral proceeding,” unless the claim implicates a right “of ‘sufficient constitutional magnitude' to require a knowing, voluntary[,] and intelligent waiver,” e.g., the rights to counsel and a jury trial. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002). A claim barred under Ariz. R. Crim. P. 32.2(a)(3) is procedurally defaulted and consequently barred from federal review. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (“Arizona's waiver rules are independent and adequate bases for denying relief.”); Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.”) (citing Ariz. R. Crim. P. 32.2(a)).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to defendants who pled guilty or no contest). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings initiated or pending on or after January 1, 2020 except where “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 467 P.3d 1120, 1122 n.1 (Ariz.Ct.App. 2020); McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020); Demaree v. Sanders, No. CV-17-00294-TUC-EJM, 2020 WL 2084582, at *2 n.4 (D. Ariz. Apr. 30, 2020). Any reference to the Rule 32 in this Report is to the pre-2020 amendment version unless otherwise specified.
4. Timeliness.
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In general, the limitations period runs from the date “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); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Whether a petition is timely is a “threshold issue” the Court must resolve before considering its merits. See White v. Klitzkie, 281 F.3d 920, 921-922 (9th Cir. 2002). Here, direct review concluded on February 7, 2018, when the Arizona Court of Appeals issued its mandate. However, the statute did not run on this date because Petitioner filed a notice of PCR on November 8, 2017, which tolled the statute until the dismissal of his PCR petition on December 8, 2018. See Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (quoting 28 U.S.C. § 2244(d)(2)) (“‘[A] properly filed application for State post-conviction or other collateral review' tolls AEDPA's statute of limitations for the pendency of the state court proceedings.”). The one-year limitations period ran from this date, making December 8, 2019 the due date for Petitioner's habeas petition.
Under the “mailbox rule,” a document filed by a pro se prisoner litigant is deemed “filed” on “the date the document is delivered to a prison official for mailing.” Stewart v. Cate, 757 F.3d 929, 933 n.3 (9th Cir. 2014). Although Petitioner's Petition was received and filed by the Court on December 9, 2019, Petitioner placed it in the prison mailing system on December 5, 2019. (Doc. 1 at 13.) The Petition is therefore timely. Claims raised in the Supplemental Brief, filed February 1, 2021, must relate back to a claim in the Petition in order to be timely; the Court will not address or review any claims or issues not raised in the Petition. Cf. Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.”).
V. Analysis.
A. Ground One.
In Ground One, Petitioner claims he was denied the right to an “unbiased/impartial tribunal” under the Fifth and Fourteenth Amendments because the trial judge was biased. (Doc. 1 at 6; see Doc. 37 at 13-19.) Petitioner is not entitled to relief on Ground One because the claims are procedurally defaulted without excuse under 28 U.S.C. § 2254(d)(1).
1. Procedurally Defaulted Claims.
Petitioner claims the trial judge was biased because the judge denied his motion to remove appointed counsel; allowed the prosecutor to respond to the motion, “even though she had no right to do so and it was misconduct for her to be doing so”; “followed [the] prosecutor[‘s] argument always”; and “allowed” the police to “prevent[] some of the evidence from being saved and presented.” (Doc. 1 at 6.)
These claims are unexhausted because Petitioner did not present them to the Arizona Court of Appeals on direct appeal or in a PCR petition for review. Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. They are procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting them in state court now. Beaty, 303 F.3d at 987. Petitioner does not show cause to excuse the procedural default. Petitioner attributes the procedural default to an inability to file a timely PCR petition for review in the Arizona Court of Appeals due to “being moved around” and “‘in the hole' for 72 days.” (Doc. 37 at 10; see Doc. 44 at 4.) However, the claims are not procedurally defaulted because Petitioner failed to assert them in a PCR petition for review; they are procedurally defaulted because Petitioner failed to assert them at trial, on direct appeal, or in his PCR petition. Ariz. R. Crim. P. 32.2(a)(3); Stewart, 202 Ariz. at 449. Because these assertions do not address that failure, they do not establish cause for the procedural default.
Petitioner asserts actual innocence, claiming he is “actually innocent of the misconduct involving weapons.” (Doc. 1 at 11; Doc. 37 at 11-13, 48-50.) Petitioner further claims that, while he “may have facilitated the drug transaction,” he had “no intent to sell/make a pecuniary gain from [it].” (Doc. 1 at 11.) Petitioner's claims rely only on legal theories and not new evidence, and therefore fail as a matter of law.
A showing of actual innocence can provide a gateway to review of procedurally defaulted claims. Herrera v. Collins, 506 U.S. 390, 416 (1993). To show actual innocence, “a petitioner must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995). “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.” Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (cleaned up). “‘[T]o be credible' [an actual innocence] gateway claim requires ‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” House v. Bell, 547 U.S. 518, 537 (2006) (citation omitted).
Critically, Petitioner does not proffer new evidence in support of his claim and incorrectly asserts “new evidence is not required to establish a credible claim of actual innocence.” (Doc. 37 at 49-50.) Contrary to Petitioner's assertion, a credible actual innocence claim “requires ‘new reliable evidence.'” Id. (emphasis added) (citation omitted). See also Cook v. Schriro, 538 F.3d 1000, 1029 (9th Cir. 2008) (noting petitioner “did not introduce any new evidence to support a finding that there would be a fundamental miscarriage of justice”); Thomas v. Goldsmith, 979 F.2d 746, 750 (9th Cir. 1992) (“[B]are allegations, unsupplemented by evidence, do not tend to establish . . . actual innocence sufficiently for the court to ignore [a procedural] default.”); Colvin v. United States, 181 F.Supp.2d 1050, 1054 (C.D. Cal. 2001) (“[T]he claim of actual innocence must be based solely on reliable evidence not presented at trial.”).
Moreover, Petitioner's claim is insufficient because it relies solely on legal theories, but “[a]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998) (emphasis added); see Pratt v. Filson, 705 Fed. App'x. 523, 525 (9th Cir. Aug. 4, 2017) (“[Petitioner] has produced no new evidence whatsoever. He merely argues that he is not guilty because the facts of the crime . . . do not support a finding that he [committed the crime]. This is a legal argument, not evidence. The actual innocence gateway is therefore closed to Pratt on this conviction.”); Young v. Gipson, 163 F.Supp.3d 647, 746 (N.D. Cal. 2015) (“The required evidence must create a colorable claim of actual innocence, i.e., that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error.”). Petitioner fails to show actual innocence.
Accordingly, the Court recommends that the claims of Ground One addressed in this subsection be dismissed as procedurally defaulted without excuse.
2. Merits of Exhausted Claims.
Petitioner claims the trial judge was biased because the judge mentioned his former career as a prosecutor at jury selection and at sentencing and referred to Petitioner as a “dumb ass” at sentencing. (Doc. 1 at 6; Doc. 37 at 13-19.) Petitioner fairly presented these claims to the Arizona Court of Appeals on direct appeal and therefore exhausted them (doc. 38-1, Ex. I, at 51-56). Swoopes, 196 F.3d at 1010. In considering their merits here, the Court reviews the decision of the Arizona Court of Appeals (doc. 37-29 at 5-8) as it is the last “reasoned” state-court decision ruling on the claims. Curiel, 830 F.3d at 870. Below are the allegedly biased remarks in context:
Jury Selection
It's truly an important service. It's in my view the second most important civic duty we have. The first being voting and the second is jury service. I have been called to jury duty eight times since I have become a judge. In 15 years that I was a prosecutor up here, I was never called.(Doc. 37-11 at 17-18 (emphasis added).)
Sentencing
The State has asked for 18 years. That is approximately two and a quarter years above the presumptive [15.75 years]. The sentence ultimately I chose is 16 and three quarters. I believe that [Petitioner] does deserve to pay for something for the failure to appear in aggravation.
I do believe there was pecuniary gain, and under the circumstances that sentence gets the defendant released at approximately the age of 50 In my mind, at the age of 64, looking at someone who is going to serve a 16-year sentence. I think it's an extraordinarily long amount or time. For someone his age, 35. It's a long amount of time.
In my mind, however, that release date of 50 is what is important because when I was a gang and repeat offender prosecutor, I was taught religiously that people do change somewhere between 45 and 50. I am more than willing to shy down to 45 on a third or fourth offense; six, seven and eight, I am more at the higher end.(Doc. 38-3, Ex. T, at 115-16 (emphasis added).) Earlier in the sentencing, the judge had commented on Agent Iver's recounting of the illegal transaction:
And my only disagreement with that whole thing about this transaction was, it was a tattoo artist who was going to get payment, and the only thing the tuy had to give him was the shotgun as I recall. Isn't that the way it went own?
So [Petitioner] knew he wasn't supposed to have [the gun] and I thought to some extent, he was doing - it was a dumb-ass way of doing it. If he hadn't shown up and sent his wife, there, there wouldn't be a problem, would there? To some extent I think “dumb ass” should be engraved on his forehead.(Id. at 98 (emphasis added).) Shortly thereafter, Agent Iver stated, “[Petitioner] is actually a likeable guy,” to which the judge responded, “which is the sad part of all of this.” (Id. at 99.) In a letter to the Arizona Commission on Judicial Conduct, the judge explained the reasons for his “rude, uncalled for and inappropriate” remarks:
My frustration with the whole case is that the defendant should not have gone to prison for anywhere near as long as he did. He refused to consider a plea bargain. Instead, he went to trial and was convicted as a repeat offender. ...
But the problem was that he knew better - He had priors. He knew he was a prohibited possessor. But if he had only called his wife and said honey take these down and sell them- no crime! If he had only told the sellers go to the store and sell them, bring me the money, no crime. The crime was he touched them.(Doc. 38-3, Ex. V, at 129-31.) The letter concluded with an apology. (Id. at 31.)
The Commission reprimanded the judge for his remarks. (Doc. 37-34 at 3.)
The Arizona Court of Appeals held that Petitioner failed to show “bias necessary for reversal.” (Doc. 37-29 at 5.) It found the judge's remark at jury selection regarding his career as a prosecutor “was nothing more than a passing remark intended to convey to the jurors the importance of jury duty,” and the one at sentencing “appear[ed] to have been designed to explain the court's thinking and aspirations for [Petitioner] when he completed his sentence.” (Id. at 7-8.) The court noted the judge had also mentioned his other former career as a public defender during the trial. (Id. at 8.) The court concluded the record did not support Petitioner's argument that the judge was “‘‘psychologically wedded to his . . . previous position as a prosecutor.” (Id. at 8.)
As to the “dumb ass” remarks, the court found they were nothing more than “an expression of [the judge's] opinion about the admittedly ill-considered way in which [Petitioner] executed the crimes for which he was charged.” (Id. at 6.) It concluded “[a]lthough ill-advised and inconsistent with the Arizona Code of Judicial Conduct, the judge's remarks do not rise to the level of ‘deep-seated favoritism or antagonism' required to demonstrate bias.” (Id. at 6-7 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994).)
A defendant has a due process right to a “‘fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). In evaluating a claim of judicial bias, the Court considers “whether the average judge in her position was likely to be neutral or whether there existed an unconstitutional potential for bias.” Hurles, 752 F.3d at 789. Proof of actual bias is not required. Id. “To succeed on a judicial bias claim, however, the petitioner must ‘overcome a presumption of honesty and integrity in those serving as adjudicators.'” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008) (quoting Withrow, 421 U.S. at 47). The analysis “also requires ‘a realistic appraisal of psychological tendencies and human weakness.'” Echavarria v. Filson, 896 F.3d 1118, 1127 (9th Cir. 2018) (quoting Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883-84 (2009)).
The Arizona Court of Appeals' decision was neither an unreasonable application of nor contrary to clearly established federal law and was not based on unreasonable determination of the facts. Fairminded jurists could agree with the court of appeals' conclusion that there was not “unconstitutional potential for bias” simply because the judge mentioned and commented on his previous experience as a prosecutor. Mays, 141 S.Ct. at 1149; Hurles, 752 F.3d at 789.
Fairminded jurists could agree with the court of appeals' conclusion that the “dumb ass” comment did not indicate an “unconstitutional potential for bias.” The judge's opinion that Petitioner acted in conformance with that of a “dumb ass” was derived solely through the course of the proceedings and therefore not evidence of any preconceived bias. As stated in Liteky:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings.
510 U.S. at 550-51. The remark did not appear to be made out of any disdain towards Petitioner as an individual, but rather toward his actions, and the fact that he could have easily avoided prosecution all together had he acted differently. (See Doc. 38-3, Ex. T, at 98 (“If he hadn't shown up and sent his wife, there, there wouldn't be a problem, would there?”).) The judge's comment can reasonably be characterized as an expression of dissatisfaction with how events unfortunately unfolded for Petitioner, which does not establish bias or partiality. Liteky, 510 U.S. at 555 (“Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger that are within the bounds of what imperfect men and women . . . sometimes display”). The Arizona Court of Appeals' decision was not an unreasonable application of Liteky and not an unreasonable determination of the facts.
The Court finds it was reasonable to conclude the judge's remarks were precisely the sort of “disapproving” or “even hostile” remarks that “ordinarily do not support a bias or partiality challenge,” absent an extrajudicial source. Liteky, 510 U.S. at 555. Here, there was none. The judge's remarks expressed his opinions about the case, not his opinions about Petitioner as a person.
Therefore, Petitioner does not show, as required for habeas relief under 28 U.S.C. § 2254(d), that the Arizona Court of Appeals' decision (1) was contrary to, or involved an unreasonable application of, clearly established federal law or (2) was based on an unreasonable determination of the facts in light of the evidence before it. Accordingly, the Court recommends that Ground One be dismissed for lack of merit.
B. Ground Two.
In Ground Two, Petitioner alleges the aggravation of his sentence was unconstitutional because the aggravating circumstances were not found by a jury and because the judge considered “improper factors.” Petitioner further alleges trial counsel was ineffective for stipulating to the aggravating factor of pecuniary gain. (Doc. 1 at 7; Doc. 37 at 19-25.) Petitioner is not entitled to relief on Ground Two because these claims are without merit or non-cognizable.
1. Improper Aggravating Factors.
Petitioner claims the trial court “abused its discretion” and “violated federal due process by ignoring Arizona's own laws regarding aggravation and mitigation.” (Doc. 37 at 24.) Petitioner alleges the trial court “unconstitutionally” aggravated his sentence on the basis of his “age of 35 and the sentencing philosophy that the judge had been ‘taught religiously as a prosecutor . . . that incarcerated people experience some kind of change between ages 45 and 50, meaning they should be incarcerated until at least that age.” (Id. at 20, 23.) Petitioner further alleges the trial court “agreed with the prosecutor's reasoning” that certain other uncharged acts should be considered as aggravating factors. (Id. at 20.)
Petitioner is not entitled to relief on these claims because they are non-cognizable issues of state sentencing, and “federal habeas corpus relief does not lie for errors of state law.” Swarthout, 562 U.S. at 219. Petitioner cannot convert these alleged violations of state law into cognizable issues of federal law simply by repackaging them as violations of federal due process. Langford, 110 F.3d at 1389 (“[A petitioner] may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.”). In Lewis v. Jeffers, the Supreme Court explained the scope of habeas court's review when presented with claims regarding aggravation:
Because federal habeas corpus relief does not lie for errors of state law, federal habeas review of a state court's application of a constitutionally narrowed aggravating circumstance is limited, at most, to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.497 U.S. 764, 765 (1990).
Petitioner does not allege his sentence “was so arbitrary or capricious as to constitute an independent due process or Eight Amendment violation” and the record does not support such a finding. Contrary to Petitioner's assertions, his sentence was not aggravated on the basis of his age or the judge's “unsubstantiated personal beliefs” (id. at 25). The only aggravating factor stated in the sentencing order is “expectation of pecuniary gain,” which Petitioner had expressly admitted to. (Doc. 38-1, Ex. D, at 28; Doc. 38-3, Ex. T, at 94.) There is no factual support for Petitioner's allegation that the trial court “agreed” (doc. 37 at 20) with the prosecutor on anything regarding aggravating or sentencing. In fact, the judge expressly declined to impose the 18-year term recommended by the State. (Doc. 383, Ex. T, at 115-16.)
2. Violation of Right to Jury Finding Aggravating Factors.
Petitioner claims his sentence was aggravated in violation of the Sixth Amendment because the aggravating circumstances the judge relied upon had not been proved to a jury in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). (Doc. 1 at 7; Doc. 37 at 21-22.) This claim is plainly meritless because Petitioner expressly admitted to the sole aggravating factor of pecuniary gain. (Doc. 38-1, Ex. D, at 28; Doc. 38-3, Ex. T, at 94.) Petitioner was not denied this right; he expressly waived it and “nothing prevents a defendant from waiving his Apprendi rights.” Blakely, 542 U.S. at 310.
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
3. Ineffectiveness of Trial Counsel.
Petitioner claims his trial counsel was ineffective for stipulating to the aggravating factor of pecuniary gain. (Doc. 1 at 7; Doc. 37 at 21-22.) This claim is unexhausted because Petitioner did not present it to the Arizona Court of Appeals on direct appeal or in a PCR petition for review. Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. The claim is procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting them in state court now. Beaty, 303 F.3d at 987.
In any event, this claim lacks merit. To establish ineffective assistance of counsel, Petitioner “must prove (1) ‘that counsel's representation fell below an objective standard of reasonableness' and (2) that any such deficiency was ‘prejudicial to the defense.'” Garza v. Idaho, 139 S.Ct. 738, 744 (2019) (quoting Stricklandv. Washington, 466 U.S. 668, 68788, 692 (1984)). Critically, Petitioner cannot show he was prejudiced by counsel's stipulation-even if counsel had performed deficiently-because Petitioner later admitted at sentencing the very fact counsel had stipulated to. The trial court advised Petitioner that he had a right to an “aggravation hearing” before a jury, but Petitioner agreed to waive that hearing and agreed to “admit the allegation” of pecuniary gain. (Doc. 38-3, Ex. T, at 94.)
C. Ground Three.
In Ground Three, Petitioner argues that his right to due process was violated when the State's witness, Agent Iver, testified regarding home invasions, guns, drugs, and gangs, which improperly influenced the jury. (Doc. 37 at 26-36; Doc. 1 at 8.) Petitioner argues his motion for a mistrial should have been granted on account of this evidence and testimony being presented. (Doc. 1 at 8.)
Additionally, Petitioner alleges he was “entrapped and that the prosecutor, judge [and] defense attorneys all were devoted to convicting [him] unethically."” (Doc. 1 at 8.) He also alleges the police “failed to save or present all evidence.” (Id.) These claims are unexhausted because Petitioner did not present them to the Arizona Court of Appeals on direct appeal or in a PCR petition for review. Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. They are procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting them in state court now. Beaty, 303 F.3d at 987. The Court notes that Petitioner also asserts the prosecutor committed “willfull” misconduct through the questioning of Agent Iver. (Doc. 37 at 35-36; Doc. 44 at 16-19.) Petitioner did not argue prosecutorial misconduct on direct appeal and did not present the Arizona Court of Appeals with a fair opportunity to rule on the merits of his prosecutorial misconduct claim. Petitioner did not cite to federal authority regarding prosecutorial misconduct, so that claim was never presented as a federal claim in the state courts. The claim is unexhausted and procedurally defaulted without excuse. See Rose v. Palmateer, 395 F.3d 1108, 1111 (2005) (“petitioners must plead their claims with considerable specificity before the state courts in order to satisfy the exhaustion requirement”).
1. Presentation of Federal Claim.
Petitioner fairly presented these claims to the Arizona Court of Appeals on direct appeal and therefore exhausted them (doc. 38-1, Ex. I, at 51-56). Swoopes, 196 F.3d at 1010. On direct appeal, Petitioner argued his due process rights were violated because Agent Iver's testimony tied him “to an uncharged crime, guns, drugs, violence, murder, and gangs,” and such testimony had “no permissible use” and “improperly influenced the jury.” (Doc. 38-1, Ex. I, at 62.) He further argued the trial judge should have granted his motion for a mistrial on that basis. (Id. at 62, 65-66.) Petitioner cited federal case law in support of his assertion that “[t]he prosecution violates a defendant's right to due process by admitting evidence if there are no permissible inferences the jury may draw from it.” (Id.) In support, Petitioner cited Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005) (“Admission of evidence violates due process “[o]nly if there are no permissible inferences the jury may draw” from it.”), amended on reh 'g, 421 F.3d 1154 (9th Cir. 2005).
Respondents argue Petitioner's citation to Boyde in his appellate brief was merely a “drive-by citation and general appeal to a constitutional right [that was] insufficient to alert the state court that he was raising a federal constitutional rights.” (Doc. 38 at 25.) The Court disagrees. At the very beginning of his argument, Petitioner asserted: “The prosecution violates a defendant's right to due process by admitting evidence if there are no permissible inferences the jury may draw from it.” (Id. at 66.) In support of this assertion, Petitioner cited federal authority: Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). (Id.) The portion of the case cited directly supported Petitioner's assertion. Id. (“Admission of evidence violates due process “[o]nly if there are no permissible inferences the jury may draw” from it.). Petitioner sufficiently raised a federal claim. See Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (“While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makes that explicit reference even if the petitioner relies predominantly on state law before the state courts.”).
2. Merits Review.
Petitioner argues that his right to due process was violated when Agent Iver testified regarding home invasions, guns, drugs, and gangs, which improperly influenced the jury. (Doc. 37 at 26-36; Doc. 1 at 8.) The Arizona Court of Appeals summarized the issue and ruled against Petitioner.
Here, counsel apparently had an agreement that Appellant's alleged participation in a home invasion would not be brought up at trial. However, Iver mentioned home invasions twice during his testimony. First, when the State asked if Iver could “elaborate on some of the training [he] received, as far as doing undercover work,” Iver responded that he had taken several courses related to undercover work, including a “two-week course where they dealt more with long-term undercover infiltrations” and a “two-week home invasion school, which was basically . . . charging and conducting undercover operations involving violent home invaders.''
Later, with reference to the shotgun being offered for sale, the prosecutor asked Iver, “Did the defendant tellyou that it was his firearm?” Iver answered the question by stating, “Yes. Yes.” Iver then continued his response, without interruption or objection, and gave a lengthy narrative description of his transactions with Appellant, testifying that Appellant told him he “knew some individuals that were going to commit a home invasion.” Defense counsel objected, and the court sustained the objection. Shortly thereafter, defense counsel requested a mistrial, stating the parties had agreed that Appellant's alleged participation in a home invasion would not be brought up. The State acknowledged the parties had made such an agreement, and offered to “clean this up very quickly” with a corrective question to Iver, so that Iver could clarify that he was not suggesting Appellant was involved in the home invasion he had mentioned. The court stated it did not believe the State had intentionally introduced the testimony, indicated it would allow the collective question and denied the motion for mistrial. Defense counsel rejected the offer of a curative question, stating it would not help and “would just bring attention back to the issue of the home invasion.”
In this case, Iver's remarks on home invasions constituted only a brief part of a five-day trial, during which the State presented significant evidence, including video and audio footage, directly implicating Appellant in the charged offenses. See Laird, 186 Ariz. at 207, 920 P.2d at 773 (holding that a mistrial was not warranted where, “[i]n light of the significant amount of evidence implicating [the defendant],” a witness' statements likely did not “add anything to the jury's consideration of the case”). Unlike the testimony in [State v, Cruz, 137 Ariz. 541, 543, 672 P.2d 470, 472 (1983)], which directly connected the appellant to certain crimes, the complained-of testimony by Iver in this case consisted of generalized statements about home invasions and an ambiguous reference to an unproven crime involving other individuals. See Jones, 197 Ariz. at 305, 1 34, 4 P.3d at 360 (concluding the trial court did not abuse its discretion in denying a motion for mistrial where a witness made “relatively vague references to other unproven crimes and incarcerations”). Further, when defense counsel objected to Iver's testimony, the trial court sustained both objections. The prosecutor offered and the court approved a curative question, which likely would have resolved any doubt on the part of the jury about Appellant's involvement in the alleged home invasion. Although defense counsel rejected the curative question, the court later instructed the jury, “If the Court sustained an objection to an attorney's question, please disregard the question and any answer given.” Thus, although Iver's unsolicited narratives in this regard may have been improper, we cannot conclude the statements were so prejudicial as to influence the jury's decision in this case.(Doc. 39-1, Ex. A, at 11-14.)
Petitioner fails to meet the high burden for relief in this habeas proceeding. Petitioner argues that the introduction of unfairly prejudicial, other act evidence resulted in a violation of his due process rights. (Doc. 37 at 26-36.) He argues that testimony regarding firearms, gangs, and home invasions was also unduly prejudicial. (Id.) But the Supreme Court of the United States “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). See Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991) (noting that the Court “express[ed] no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes' evidence to show propensity to commit a charged crime”). Relief for Petitioner is not foreclosed. A state court's admission of evidence will form the basis for federal habeas relief where the evidentiary ruling “so fatally infected the proceedings as to render them fundamentally unfair” in violation a petitioner's due process rights. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
Here, the ruling of the Arizona Court of Appeals was not clearly unreasonable. Although the State's witness should not have mentioned a possible home invasion, the trial court sustained Petitioner's objections and offered a curative question by counsel. The court also instructed the jury to disregard any testimony where the court sustained an objection. In light of these rulings, the court of appeals found that “generalized statements about home invasions and an ambiguous reference to an unproven crime involving other individuals” was not “so prejudicial as to influence the jury's decision in this case.” (Doc. 39-1, Ex. A, at 13.) Habeas relief may be granted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts” with United States Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). The decision of the Arizona Court of Appeals is not incorrect beyond disagreement. A reasonable jurist could conclude that the jury followed the court's instructions and afforded sole weight to the proper testimony and recorded evidence in the case. See Hayes v. Ayers, 632 F.3d 500, 515 (9th Cir. 2011) (trial judge's failure to declare mistrial following witness's statement of excluded hearsay did not rise to level of federal due process violation); Weeks v. Angelone, 528 U.S. 225, 234 (2000) (Absent a contrary showing, “[a] jury is presumed to follow its instructions.”); Jennings v. Runnels, 493 Fed.Appx. 903, 906 (9th Cir. 2012) (“[T]he state court reasonably concluded that the admission of testimony that Jennings had bragged about using a stun gun in a prior robbery did not render the trial fundamentally unfair in violation of due process. Even if this evidence were introduced to show that Jennings committed the crime for which he was on trial, the Supreme Court has never held that propensity evidence violates due process.”) (citing Estelle v. McGuire, 502 U.S. at 75 & n.5).
The Arizona Court of Appeals was not unreasonable in concluding that petitioner's trial was not so fundamentally unfair such that the trial court erred in failing to declare a mistrial. Accordingly, the Court finds that the Arizona Court of Appeal's rejection of Petitioner's due process claim was not an unreasonable application of clearly established federal law. Habeas relief is therefore not warranted on Ground Three.
D. Ground Four.
In Ground Four, Petitioner asserts violations of his Fifth, Sixth, and Fourteenth Amendment rights “to effective assistance of counsel and due process of law.” ((Doc. 1 at 9; Doc. 37 at 36-46.) Petitioner alleges his trial counsel and PCR counsel were “ineffective in multiple ways.” (Doc. 1 at 9.) Petitioner also reasserts his allegation that the trial court erred in denying his motion to remove his appointed trial counsel. (Id.) Petitioner alleges he would have “taken the plea but for” the ineffectiveness of his trial counsel. (Id.)
1. Exhaustion.
These claims are unexhausted because Petitioner did not fairly present them in the Arizona courts. Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. In the Maricopa County Superior Court, Petitioner's PCR counsel filed a notice that counsel was “unable to find any claims for relief to raise in post-conviction relief proceedings.” (Doc. 38-2, Ex. O, at 109.) Petitioner filed a pro se petition and checked boxes that alleged ineffective assistance of counsel. (Doc. 38-3, Ex. R, at 1-4.) Although he attached numerous exhibits, Petitioner did not provide any facts or argument in his petition. The Petition he filed specifically prompted Petitioner to supply the “facts in support of the alleged error(s) up which the petition is based. . . .” (Id. at 4.) Petitioner later filed an eight-page Reply alleging prosecutorial misconduct, judicial misconduct, and disclosure violations that did not argue claims of ineffective assistance of counsel. (Doc. 38-3, Ex. U, at 120-127.) On December 8, 2018, the court dismissed the petition finding “that Petitioner has failed to present a colorable claim for relief for ineffective assistance of counsel. Petitioner has failed to present any explanation as to how trial counsel was ineffective and how Petitioner was prejudiced.” (Doc. 38-3, Ex. S, at 87.) Petitioner did not submit a petition for postconviction relief in the Arizona Court of Appeals.
Petitioner's claim is unexhausted without excuse because Petitioner failed to fairly present his IAC claims in his pro se PCR petition in the trial court. “Fair presentation requires that the petitioner describe in the state proceedings both the operative facts and the federal legal theory on which h[er] claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon h[er] constitutional claim.” Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008) (quotation marks omitted). Petitioner argued no facts in his PCR petition. It is not enough that all the facts necessary to support his claim were before the trial court in the attachments. Baldwin v. Reese, 541 U.S. 27, 30 (2004). Petitioner was required, but failed, to present and argue any facts regarding each specific ineffective assistance of counsel claim. “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) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)). Petitioner's complete failure to present his specific claims of ineffective assistance of counsel in his PCR petition results in the procedural default of these claims.
The Court need not address whether Petitioner provided adequate cause to excuse the filing of his claims in the Arizona Court of Appeals in a petition for post-conviction review. Petitioner asserts that he was “unable to file a timely Petition for Review” because he was “in the hole” for 72 days and “moved around by ADOC, which precluded him from having access to his legal materials and from being able to timely file a Petition for Review after his PCR was decided....” (Doc. 37 at 12; Doc. 1 at 5.) Respondents argue that Petitioner supplied no facts or records to support his claim. (Doc. 38 at 31-32.) The Court does not need to decide whether Petitioner's conclusory allegation is sufficient. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (conclusory allegations blaming procedural default on general obstacles inherent inprison life, without more specific explanation, do not establish cause and prejudice). The Court notes that Petitioner does not explain why he failed to file an untimely petition for review in the Arizona Court of Appeals with the excuse he asserts here. The Arizona Court of Appeals had allowed him to file an untimely direct appeal after he requested permission. (Doc. 38-1, Ex. A, at 6 fn. 6.)
The Court reviews whether cause and prejudice exist to excuse the procedural default of his claims.
2. Martinez v. Ryan.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Court recognized a narrow exception to the Court's ruling that the ineffectiveness of PCR counsel is not a constitutional violation and thus cannot provide cause to excuse a procedural default. Under Martinez, the ineffective assistance of PCR counsel may serve as cause for the procedural default of an ineffective assistance of counsel claim. For the Martinez exception to apply, a petitioner must show that post-conviction counsel “was ineffective under the standards of Strickland v. Washington” and that the underlying ineffective assistance of counsel claim is “substantial” and “has some merit.” Martinez, 566 U.S. at 14; see also Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance of counsel requires a showing of deficient performance and resulting prejudice); Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) (“to find a reasonable probability that PCR counsel prejudiced a petitioner by failing to raise a trial-level IAC claim, we must also find a reasonable probability that the trial-level IAC claim would have succeeded had it been raised”). The Court will review each of Petitioner's claims even though counsel has not argued cause and prejudice to excuse the procedural fault.
Surprisingly, the Memorandum and Reply contain no citations to Martinez. Even though Respondents cite to Martinez in the Response, Petitioner filed a Reply that does not cite or argue Martinez to excuse the procedural default of his claims. Petitioner did write “Martinez v. Ryan violations. Strickland violations” in his Petition. (Doc. 1 at 9.)
a. Det. Iver's Testimony.
Petitioner argues “the trial attorney was ineffective in failing to object to the numerous reversible prosecutorial misconduct issues rising to the level of due process violations and preventing [Petitioner] from receiving a fair trial. . . .” (Doc. 37 at 39.) Petitioner fails to demonstrate Strickland prejudice under this claim. The Court reviewed this claim on the merits in Ground Three. There is no reasonable probability that this triallevel IAC claim would have succeeded because the Arizona Court of Appeals found that “although Iver's unsolicited narratives in this regard may have been improper, we cannot conclude the statements were so prejudicial as to influence the jury's decision in this case.” (Doc. 39-1, Ex. A, at 11-14.) Because Petitioner cannot demonstrate prejudice, he does not excuse the procedural default of this claim.
b. Failure to Request “Other Act” Hearing.
Petitioner argues that counsel provided ineffective assistance by failing to request a hearing prior to Agent Iver testifying about other act evidence. (Doc. 37 at 39-40.) Although this argument may establish that counsel was deficient by failing to request a hearing, Petitioner still fails to establish that he was sufficiently prejudiced by the introduction of Agent Iver's testimony.
c. Failure to Communicate and Challenge Grand Jury.
Petitioner argues “his trial attorney was ineffective in multiple other ways including most critically failure to communicate with [Petitioner], failure to challenge grand jury proceedings [], failure to investigate, failure to present an investigative report from an investigator who had determined that the charges were baseless, failure to call witnesses on [Petitioner's] behalf, especially Mr. Summers, who was the person who had the shotgun to sell in Count 2 [], and failure to utilize Brady material regarding Detective Egea [].” (Doc. 37 at 40-41.) Petitioner provides no more argument or analysis regarding these claims. Petitioner invites the Court to review various pleadings and exhibits filed in the state courts. The Court has grudgingly done so, but these documents do not outline Petitioner's arguments here. The Court cannot speculate regarding the merits of these conclusory allegations. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (finding petitioner's “cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief.”); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (finding “conclusory suggestions that [petitioner's] trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation”).
d. Allowing the Prosecutor to Speak with Petitioner.
Petitioner argues counsel “was ineffective in allowing the prosecutor to improperly address [Petitioner] after a hearing and attempt to influence him to accept a plea” outside of counsel's presence. (Doc. 37 at 41.) Petitioner did not accept a plea offer, so Petitioner fails to demonstrate how he was prejudiced by this alleged conduct by counsel.
e. Failure Regarding Pretrial Investigation and Sentencing.
Petitioner argues counsel “was also ineffective for failing to perform any effective pretrial investigation or file necessary Responses to Motions filed by the State such as the allegations of Historical Prior Convictions or the Motions for Rule 609 use of priors for impeachment,” or stipulating to the pecuniary gain aggravator. (Doc. 37 at 42.) He asserts counsel “failed to recognize or argue the sentencing problems” in the case and “failed to engage in meaningful argument about the proper sentencing range.” (Id.) Petitioner fails to establish these claims would have succeeded if they had been raised. Petitioner does not describe the pretrial investigation that counsel should have conducted. He does not explain how counsel should have responded to the notice of intent to use prior convictions to enhance Petitioner's sentencing range. He does not explain how counsel could have successfully defeated a motion to impeach Petitioner with his prior convictions if he chose to testify at trial. Petitioner's conclusory allegations are insufficient to merit relief.
3. Actual Innocence.
Petitioner also asserts that his actual innocence permits review of this ground. (Doc. 37 at 13; Doc 44 at 3-4.) He argues that the “facts as detailed in the claims raised in this action, establish that it is more likely than not that no reasonable juror would have convicted Mr. Billups had the various numerous constitutional errors not occurred....” (Doc. 44 at 3.) As noted above, a habeas petitioner may qualify for relief from his procedural default if he can show that the procedural default would result in a fundamental miscarriage of justice. See Cook, 5538 F.3d at 1028.
Here, Petitioner does not dispute there was testimonial and recorded evidence of Petitioner selling a shotgun and oxycodone to the undercover agent. Agent Iver testified that Petitioner admitted ownership of the shotgun. (Doc. 38-1, Ex. A, at 5 n.3.) At sentencing, the prosecutor advised the court that there “was a text that was sent from the defendant to the undercover officer which says, yup Hey, I'm coming with the .12 gauge.” (Doc. 38-3, Ex. T, at 101.) A recording of the July 15 drug transaction was played for the jury. (Id. at 5.) On direct appeal, Petitioner stated that he “sold an undercover agent five oxycodone pills” and “sold the agent a shotgun.” (Doc. 38-1, Ex. I, at 50.) To be sure, Petitioner argues that “someone else engaged in illegal transactions with an undercover agent” and that Petitioner “never possessed any guns.” (Doc. 44 at 18.) But Petitioner presents no new evidence of actual innocence. “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.” Schlup, 513 U.S. at 324. Petitioner presents no new evidence to the Court. Petitioner fails to demonstrate that this was the extraordinary case of actual innocence.
E. Ground Five.
In Ground Five, Petitioner alleges “his due process rights were violated in his Grand Jury presentation” and “there was no probable cause for his case to move forward.” (Doc. 37 at 47; see Doc. 1 at 10.) Petitioner's challenges to the indictment and the indictment proceedings are not cognizable because there is “no due process right to a grand jury indictment before criminal prosecution in state court.” Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010) (citing Hurtado v. California, 110 U.S. 516, 534-35 (1884)). Accord Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (The “Fifth Amendment right to presentment or indictment by a grand jury ... has not been incorporated into the Fourteenth Amendment so as to apply against the states.”); Stumpf v. Alaska, 78 Fed. App'x. 19, 21 (9th Cir. 2003) (“First, the introduction of grand jury testimony that was later determined to be perjury did not violate Stumpf's right to due process. Because the right to a grand jury has not been applied to the states via the Fourteenth Amendment, Stumpf's Fifth Amendment challenge to the grand jury proceedings does not raise a question of federal law and is not cognizable on habeas review.” (citation omitted)).
Petitioner also asserts “he was provided with materials from someone else's file” without any further explanation, legal theory, or supporting facts. (Doc. 37 at 47; Doc. 1 at 10.) Petitioner does not explain how he was prejudiced by this act. Given the dearth of any insight into the basis of this claim, the Court recommends it be dismissed for failure to state a claim. James v. Borg, 24 F.3d 20, 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
Also, Petitioner was convicted at trial, which rendered harmless his claim of “lack of probable cause” or any errors in connection with the grand jury proceeding. United States v. Mechanik, 475 U.S. 66, 70 (1986) (“But the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.”); United States v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010) (“[A] guilty verdict renders error in the presentation to the grand jury harmless beyond a reasonable doubt.”); Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir. 2006) (“[A]ny constitutional error in the grand jury proceedings is harmless because [the petitioner] was ultimately convicted of the offenses charged.”).
Accordingly, the Court recommends Ground Five be dismissed as non-cognizable and meritless.
F. Ground Six.
In Ground Six, Petitioner claims he is “actually innocent of the misconduct involving weapons” and, while he “may have facilitated the drug transaction,” he claims he had “no intent to sell/make a pecuniary gain from [it].” (Doc. 1 at 11; see Doc. 37 at 4853; Doc. 8 at 3.)
The Court recommends Ground Six be dismissed for lack of merit. In Ground Four, the Court considered the merits of Petitioner's actual innocence claim. As explained there, Petitioner's claim failed as a matter of law because he based it solely on alleged legal insufficiencies and not on any new evidence as required under House, 547 U.S. at 537. Therefore, the Court recommends Ground Six be dismissed with prejudice for failure to state a credible claim of actual innocence.
Alternatively, the Court recommends Ground Six be dismissed for lack of merit. In Ground One, the Court considered the merits of Petitioner's actual innocence claim to the extent it could provide a gateway to review of procedurally defaulted claims. As explained there, Petitioner's claim failed as a matter of law because he based it solely on alleged legal insufficiencies and not on any new evidence as required under House, 547 U.S. at 537. Therefore, in the alternative and for the reasons detailed in Ground One, the Court recommends Ground Six be dismissed with prejudice for failure to state a credible claim of actual innocence.
VI. Conclusion.
For the reasons stated in this Report, the Court recommends the Petition be denied and dismissed with prejudice. The record is sufficiently developed; an evidentiary hearing is not necessary for resolution of the matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
VII. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.
IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability 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 Fed. R. App. P. 4(a)(1) 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 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 14 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 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 Fed.R.Civ.P. 72.