Opinion
CV 23-00026 PHX DWL (CDB)
08-28-2023
Cowan Lamar Brown, Petitioner, v. Attorney General of the State of Arizona, Jeffrey Freeland, Christopher Howard, Respondents.
TO THE HONORABLE DOMINIC W. LANZA:
REPORT AND RECOMMENDATION
Camille D. Bibles, United Stales Magistrate Judge.
Petitioner Cowan Brown seeks relief, pursuant to 28 U.S.C. § 2254, from his state court conviction on one count of second-degree murder. The matter is fully briefed and ready for the Court's review.
I. Background
The Arizona Court of Appeals described the facts underlying the charges against Brown, and his state criminal proceedings, as follows:
.. .One night in November 2018, Victim told his mother that he was going to the store. Soon after he stepped out of their apartment, she heard gunshots. One of their neighbors, Karin Castro-Rios, heard those gunshots and ran toward the shooting. Castro-Rios called 911 after seeing Victim lying on the ground, screaming.
Two nearby officers, working an unrelated call, also heard the gunshots and quickly arrived at the scene. Another officer responded and noticed Victim's open wound and blood-smeared clothes. When his mother approached the crowd congregating around him, Victim told her, “Mama, Cowan shot me. Cowan shot me, mama.”
Victim survived transport to the hospital but died during surgery.
In December 2018, a Grand Jury indicted Brown for one count of second-degree murder, a class one dangerous felony. The State sought testimony from three witnesses who picked Brown out of a photo lineup: Castro-Rios, Antonio Quezada, and Kimberly Hoysradt. Despite their pretrial identifications, these witnesses refused to identify Brown when they testified. Quezada testified that he could not identify Brown in the courtroom because of Brown's face mask. Brown wore a mask to follow the Arizona Supreme Court's Covid-19 administrative order in effect at the time of trial.
On the fifth day of trial, before the jury entered the courtroom, the superior court addressed the witnesses' refusal to identify Brown. The court stated:
And with respect to the issue of whether either of those witnesses were afraid of Mr. Brown, I think that's an inference that could be derived from the fact that I just personally do not find it credible that either one-of course, one of the witnesses said that he couldn't identify Mr. Brown if he had a mask on. I didn't find that to be particularly credible, but I'm not the jury. And the other witness said that she didn't have her glasses on, and that was never followed up on. So that is certainly an inference, but you know, the record will reflect what the record reflects.
The court informed the parties that it would not order Brown to remove his mask.
Brown moved to prevent the State from arguing to the jury that the witnesses refused to identify Brown out of fear. Outside the jury's presence, the superior court denied Brown's motion and described the witnesses' testimony as “a little suspect.” During closing arguments, the State told the jury that it could determine whether fear influenced the witnesses' “hesitation to identify the defendant in court.”State v. Brown, 2022 WL 2359623, at *1 (Ariz.Ct.App. June 30, 2022).
The following is taken from Brown's appellate brief:
Antonio [Quezada] knew Mr. Brown from the neighborhood. They would exchange hellos if they saw each other, but Antonio did not know Mr. Brown well. Antonio initially testified that on the night of the shooting, he was putting up Christmas lights and Kimberly was outside smoking a cigarette in her truck. Mr. Brown ran into Antonio's apartment and wanted to use his phone. Mr. Brown “was in a hurry” and Antonio gave him his cell phone. Mr. Brown went into Antonio's bathroom to use the phone. [Antonio] overheard Mr. Brown say that he just shot someone. Mr. Brown left after the call. Kimberly was in the apartment when Mr. Brown was using the phone. Antonio did not know there had been a shooting that night. After Mr. Brown left, Antonio went outside to look for his cat. He heard police helicopters and
sirens. Then a police officer asked if anyone was in Antonio's apartment, and officers checked to make sure it was clear.
About five days later, Antonio went to the police department and gave a statement. He reviewed a six-pack photo lineup and identified Mr. Brown. Kimberly Hoysradt confirmed that on the night of the shooting she was at Antonio's apartment.... She heard five or six gunshots when she parked, but did not see anything.. Kimberly previously met Mr. Brown. That night, she was in Antonio's apartment for about five minutes when Mr. Brown came in. She said Mr. Brown was breathing heavy and collapsed on the floor. She testified about how Mr. Brown asked to use the phone, went to the bathroom, and made a call. Kimberly heard him tell someone to pick him up and that he shot someone. She “was shocked” to hear this. Mr. Brown left the apartment. Kimberly admitted that when the police officers checked Antonio's apartment that night, she did not mention that Mr. Brown had been there. Kimberly acknowledged that she was reluctant to get involved in the case. But the next morning, she went to the police department and an officer told her to call Crime Stoppers. A detective interviewed her at the police station, and she identified Mr. Brown from a photo lineup.(ECF No. 10-1 at 25-28) (citations to the trial transcript omitted).
[At trial, w]hen the prosecutor asked Antonio if he saw the person from the night of the shooting in the courtroom, he said he did not. When asked if he saw Mr. Brown in the courtroom, Antonio replied “with the mask on, no. Maybe with the masks off.” Antonio confirmed that he would have to see Mr. Brown with his mask off to make the identification. No one asked Mr. Brown to remove his mask.
Antonio did not say anything about being scared on direct examination. On redirect, regarding Antonio's delay in reporting, the prosecutor asked, “[w]ere you scared to do that?” In response to the leading question, Antonio said yes.
. Kimberly confirmed the person she identified in the photo lineup was Mr. Brown, and that he was the person who came into Antonio's apartment on the night of the shooting. She testified she did not know if it was her eyesight, but she did not see Mr. Brown in the courtroom. The prosecutor confirmed that when Kimberly previously saw Mr. Brown, he was not wearing a mask. Other than testifying that she was initially reluctant to get involved in the case, and that she went to the police department the next morning, Kimberly did not testify that she was scared or in fear of Mr. Brown.(ECF No. 10-1 at 31-32) (citations to the trial transcript omitted).
After Antonio said he could not say whether the masked defendant in court was Brown, the parties conducted an off the record bench conference regarding whether the lack of in-court identifications of Brown were because he was wearing a mask in compliance with the Arizona Supreme Court COVID-related administrative order. (ECF No. 10-1 at 67). During the bench conference the trial court postulated as to why the witnesses did not identify Brown. The trial court concluded it would not require Brown to remove his face mask for the purposes of witnesses' potential in-court identification unless Brown voluntarily chose to remove his mask, noting that whether or not Brown made that choice was the “defense's call as it relates to a matter of strategy.” (Id.).
The defense filed a motion in limine asking the trial court to preclude the prosecution from arguing that Brown “refused to remove his mask during in court identification procedures,” and prevent the prosecution from arguing “that three of the State's witnesses did not identify Brown in court ‘out of fear of [him].'” (ECF No. 10-1 at 70). The State argued that the witnesses' demeanor on the witness stand, in tandem with their out-of-court identification of Brown as the shooter, “speaks for itself,” and that the “State should be allowed to argue that demeanor to the jury, because they are allowed to take that into consideration.” (ECF No. 10-1 at 71). The trial court granted the first part of the motion, noting “it was not sure that the State was going to highlight the fact” that the witnesses did not identify Brown as the shooter, and the idea “‘that those witnesses seemed frightened may not be shared by one or any of the jurors.'” (ECF No. 10-1 at 70). In denying the second part of the motion in limine, the trial court noted the witnesses' testimony was “‘in [the court's] mind a little suspect,” inter alia because one of the witnesses “‘wouldn't even look in [Brown's] direction'” (ECF No. 10-1 at 72).
At closing argument, the State addressed the jurors' consideration of the witnesses' demeanor “when determining the reason why they did not identify Brown in court after having identified him in a photographic line-up.” (Id.). The prosecutor noted the jurors were the sole judges of the witnesses' credibility. (Id.). The prosecutor asked the juror to use their “common sense” and remember that the witnesses were in the safety of their home and the police station when they picked Brown out of a photo lineup as the person they heard say “I just shot someone.” (ECF No. 10-1 at 73). The prosecutor urged the jury to “[d]etermine whether [the witnesses'] hesitation to identify the defendant in court arose out of fear or something else.” (ECF No. 10-1 at 39). “In support of this point, the prosecutor seemed to argue that Karin would not look at Mr. Brown in court, but then acknowledged ‘her eyes darted just very quickly to that side of the courtroom.'” (ECF No. 10-1 at 39-40).
In closing argument defense counsel argued there was no evidence before the jury that the witnesses were afraid of Brown. (ECF No. 10-1 at 74).
The jury found Brown guilty of second-degree murder with four aggravating circumstances. The superior court sentenced Brown to 22 years' imprisonment with 932 days of pre-incarceration credit. The court ordered Brown to pay $64 in court fees, including a $9 assessment to the Victims' Rights and Compensation Fund.Brown, 2022 WL 2359623, at *1.
On appeal Brown asserted the trial court's denial of the defense's motion in limine “caused the trial court's comment on the evidence to reach the jury,” in violation of the Arizona Constitution. (ECF No. 10-1 at 20). The only federal case cited in the appellate brief was Lisenba v. People of State of California, 314 U.S. 219 (1941). (ECF No. 10-1 at 23). The brief also cited the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. (ECF No. 10-1 at 23-24, 47-48).
Lisendba was cited in the following context:
... if the Court determines this issue was not preserved below, this Court should review it for fundamental prejudicial error. [] This violation of Arizona's Constitution, as well as due process under the federal and state constitutions, deprived Mr. Brown of a “constitutionally guaranteed procedure[],” and meets prong one of State v. Escalante's three-pronged articulation of fundamental error. Escalante, 245 Ariz. at 141, ¶ 18; U.S. Const. amends. 5, 6, 14; Ariz. Const. art. 2 § 4, Ariz. Const. art. 6 § 27. In a criminal trial, a defendant is denied due process of law when “the absence of [] fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. People of State of California, 314 U.S. 219, 236 (1941). Reversal is warranted here because the error was both fundamental and prejudicial. Escalante, 245 Ariz. at 140, ¶ 12.(ECF No. 10-1 at 42-43).
The cited portion of Lisenba states:
As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. Such unfairness exists when a coerced confession is used as a means of obtaining a verdict of guilt.314 U.S. 219, 236-37 (1941).
The Fifth, Sixth, and Fourteenth Amendments were cited in the following context: Here, the trial court's comment on the evidence was that the witnesses did not identify Mr. Brown in court because they were afraid of him. The trial court then denied the defense's motion in limine, that would have prevented the State from arguing the trial court's comment on the evidence to the jury.
By denying the motion in limine, the trial court caused its comment on the evidence to be communicated to the jury, through the vehicle of the State's closing argument.
There was no reason for the trial judge to interject his personal opinion about why the non-police witnesses had not identified Mr. Brown in court.
In summary, the trial court violated Article 6 Section 27 by commenting on the evidence. Ariz. Const. art. 6, § 27. It again violated that section, and abused its discretion as to the evidentiary ruling, by denying the Defense's motion in limine. This was an abuse of discretion because the ruling resulted in a constitutional violation. Ariz. Const. art. 6, § 27; State v. Riley, 248 Ariz. 154, ¶ 7 (2020) (internal citation and quotation omitted) (“An abuse of discretion occurs when the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice.”).
... the trial court's comment on the evidence impaired the jury's ability to independently assess the evidence, because the trial court's comment was conveyed to the jury through the State's closing argument.(ECF No. 10-1 at 46-49).
In response, the State construed Brown's first argument as follows:
Brown moved to preclude the State from arguing that three of the State's witnesses may not have identified him as the shooter in a murder case because they were afraid of him. The trial court denied the motion. Did the trial court's denial of Brown's motion in limine somehow constitute a “comment on the evidence” that resulted in fundamental, prejudicial error?(ECF No. 10-1 at 56). The State maintained the trial court “did not comment on the evidence when it denied Brown's motion in limine.” (ECF No. 10-1 at 57).
The State asserted:
Brown argues that the trial court “commented on the evidence” when it: (1) stated-outside the presence of the jurors-that two of the State's witnesses appeared “reluctant to identify [him] because they were afraid of [him]”; and (2) subsequently denied his motion in limine requesting that the State be precluded from arguing that any witnesses did not identify him because they were afraid of him.(ECF No. 10-1 at 64). The State argued Brown's claim was waived for the failure to raise the claim at trial because the motion in limine did not propound the theory that any closing argument regarding the witnesses' potential fear of Brown equated to a “comment on the evidence” by the judge. (ECF No. 10-1 at 65).
The State also noted:
. Brown cites no authority for the proposition that a prosecutor is precluded from making an argument in closing arguments merely because a trial court made an observation about the evidence outside the presence of the jurors. Indeed, Brown's suggestion that such arguments should be precluded defies common sense. For example, based on Brown's argument, the State would be precluded from arguing that particular evidence was compelling if a trial court noted the compelling nature of the evidence when denying the defendant's Rule 20 motion.(ECF No. 10-1 at 76).
In denying relief the state appellate court characterized Brown's claim as asserting “the superior court violated the prohibition against judicial comment on the evidence.” Brown, 2022 WL 2359623, at *2. The appellate court denied relief on this claim, determining:
. By failing to object to the court's comments, Brown forfeited his right to appellate relief absent fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 564-65, ¶ 8 (2005). To prove fundamental error, Brown must establish: (1) the court erred; (2) the error goes to the foundation of the case, deprived him of a right essential to his defense, or is so egregious that it robbed him of a fair trial; and (3) he suffered prejudice. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
“Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” Ariz. Const. art. 6, § 27. A judge improperly comments on the evidence “by expressing an opinion as to what
the evidence proves in a way that interferes with the jury's independent evaluation of that evidence.” State v. Riley, 248 Ariz. 154, 179, ¶ 85 (2020) (cleaned up).
Brown points to the court's comments that the jury could infer Castro-Rios, Quezada, and Hoysradt refused to identify him in court because they were afraid of him. But the court made these statements outside the presence of the jury when ruling on Brown's motion in limine. See State v. Shumway, 137 Ariz. 585, 588 (1983) (“[A] comment on the evidence ... occurs when the judge tells the jury his opinion of what the evidence does or does not show.”) (emphasis added).
Brown contends the court's comments are nonetheless constitutionally problematic because they reached the jury “through the vehicle of the State's closing argument.” The court noted a potential inference, and the State argued the same inference in closing: the jurors could conclude that fear or another emotion influenced the witnesses' testimony. Brown provides no authority for his “vehicle” theory in which the State's otherwise legally proper closing argument transformed into the court's constitutionally impermissible comment. We find no error.Brown, 2022 WL 2359623, at *1.
Brown also argued on appeal that “the superior court improperly imposed the $9 assessment to the Victims' Rights and Compensation Fund,” noting the legislation authorizing the penalty assessment became effective after the date of Brown's offense. Id. See also Appellant's Brief, State of Arizona v. Brown, 2021 WL 8016528, at *34 (Ariz.Ct.App.). The State conceded the imposition of the assessment was not valid and the appellate court therefore vacated the assessment. Brown, 2022 WL 2359623, at *2.
The Arizona Supreme Court denied a petition for review.
Brown filed a timely notice seeking state post-conviction relief. (ECF No. 10-1 at 3 14). In the notice Brown alleged the State used perjured testimony and that the facts presented at trial were insufficient to find him guilty beyond a reasonable doubt. (Id.). Brown was appointed post-conviction counsel, who advised the state habeas court that they had reviewed the record and could find no colorable claims to raise on Brown's behalf. (ECF No. 10-1 at 16-17, 118-21). The habeas trial court allowed Brown until September 23, 2022, to file a pro per petition. (ECF No. 10-1 at 130). Brown did not file a pro per petition, and the post-conviction action was dismissed. (Id.).
II. Brown's Claims for Habeas Relief
In his amended § 2254 petition Brown asserts the trial court “violated constitution on commenting on evidence.” (ECF No. 5 at 6). He argues that although the trial court did not “make the comments about the evidence directly to the jury. The [trial court's] comments still reached the jury through the prosecutors closing arguments. [sic]” (Id.). Brown does not mention due process or any specific provision of the United States Constitution in his federal habeas petition.
In his second claim for § 2254 relief Brown alleges “[o]ne of the jury panels was tainted,” contending the trial court wrongly declined defense counsel's “request to have [a] particular jury panel burned” after two venire persons commented that “all defendants” are guilty “when they go to [trial].” (ECF No. 5 at 7). Brown does not mention due process or any specific provision of the United States Constitution in asserting this claim for relief. With regard to why this issue was not presented to the state appellate court, Brown avers: “I discuss[ed] this issue with my appellate attorney she advised me she was only raising issues she felt was my best chance at relief and that she couldn't raise every issue.” (Id.).
Brown's third claim for federal habeas relief states: “Victims['] excited utterance. Mistaken identity.” (ECF No. 5 at 8). In support of this claim Brown asserts:
In the original police report and court documents the victim told his mother that a guy named Kwan/Quan had shot him. The victim never said Cowan shot him. Even on the police body camera footage the officer said “the only name we have is Kwan/Quan.[”] The court document from my denied appeal and denied petition for review says the victim said Cowan shot him towards his mother. How can this be when the victim never said Cowan shot him. My first name is very distinguishable from the original names given. This is mistaken identity.(Id.). Brown does not mention due process or any specific provision of the United States Constitution in asserting this claim for relief.
In his fourth claim for relief Brown contends witnesses failed to identify him at his trial. (ECF No. 9 at 9). He argues, inter alia: “None of the witnesses said in [trial] that they feared the defendant. Yet the [trial] judge argued to the parties that the witnesses did not identify the defendant because they feared him.” (Id.). Brown does not mention due process or any specific provision of the United States Constitution in asserting this claim for relief.
III. Analysis
A. Failure to state a cognizable claim for relief
Nowhere in his § 2254 petition does Brown mention the United States Constitution, a specific constitutional right, or any provision of the United States Constitution, nor does Brown cite any opinion of a state or federal court which analyzes a provision of the United States Constitution.
Federal habeas relief is available only for violations of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209, 221 (1982) (“A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution.”); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) (“We have pointed out that the Great Writ is available only where “the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts.”). See also Mitchell v. Phillips, 2014 WL 1246426, at *5 (D. Ariz. Mar. 26, 2014) (“Petitioner's sparse allegations of actual innocence and factual insufficiency fail to assert a violation of the Due Process Clause or any other ‘violation of the Constitution or laws or treaties of the United States.'”).
Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension. Smith, 455 U.S. at 221. Brown makes only conclusory allegations that his conviction was in error, without citing the United States Constitution or any specific provision of the Constitution. Section 2254 and federal court jurisprudence require an applicant for a writ of habeas corpus to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or at the very least a state case raising a pertinent constitutional issue, before the federal district court will evaluate a claim, inter alia because the failure to do so leaves the court unable to establish if the petitioner properly exhausted their federal constitutional claim in the state courts. E.g., Cupp v. Naughten, 414 U.S. 141, 146 (1973); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998) (finding no federal claim raised when the petitioner “argued in his reply brief that the jury instructions did not include a mens rea requirement, but did not argue that this omission violated the U.S. Constitution”); Gutierrez v. Griggs, 695 F.2d 1195, 1197-98 (9th Cir. 1983) (“When a state prisoner has failed to allege a deprivation of a federal right, § 2254 does not apply and it is unnecessary for us to determine whether the prisoner satisfied the § 2254(b) exhaustion requirement.). Cf. Engle v. Isaac, 456 U.S. 107, 120 n. 19 (1982) (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts.”); Ford v. Norris, 364 F.3d 916, 919 (8th Cir. 2004); Peyron v. Ryan, 2017 WL 914640, at *2 (D. Ariz. Feb. 10, 2017), report and recommendation adopted, 2017 WL 897801 (D. Ariz. Mar. 7, 2017) (“[the petitioner does not] allege the violation of a federal constitutional right, such as the violation of his federal due process rights. Because no ‘clearly established federal law' has been articulated, [the petitioner] is not entitled to habeas relief ...”).
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). Although the federal district courts have been instructed to liberally interpret pro se pleadings in civil cases asserting a violation of their federal constitutional rights pursuant to 42 U.S.C. § 1983, this should not place on the reviewing federal habeas court the entire onus of ferreting out grounds for relief. In order to satisfy Rule 2(c) of the Rules Governing Section 2254 cases, a petitioner must point to a “real possibility of constitutional error.” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation marks omitted). Facts must be stated, in the petition, with sufficient detail to enable the Court to determine, from the face of the petition, whether further habeas corpus review is warranted. See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990); Roseberry v. Ryan, 2019 WL 3556932, at *13 (D. Ariz. Aug. 5, 2019); Martinez v. Ryan, 2014 WL 1713559, at *8 (D. Ariz. Apr. 30, 2014); Sharma v. Schriro, 2009 WL 5195863, at *9 (D. Ariz. Dec. 17, 2009). But see Williams v. Ryan, 2020 WL 7232628, at *9-10 (D. Ariz. Sept. 30, 2020) (“the liberal construction mandate requires the Court to read a claim as asserting legal theories suggested by the facts alleged .“Once again, we must liberally construe the pro se litigant's pleadings, and we will apply the applicable law, irrespective of whether he has mentioned it by name.” Dluhos v. Strasberg, 321 F.3d 365, 373 (3rd Cir. 2003)”), report and recommendation adopted, 2020 WL 7022233 (D. Ariz. Nov. 27, 2020); Smith v. Ryan, 2019 WL 2290511, at * (D. Ariz. Apr. 25, 2019) (“This requirement for specifying a federal legal theory [in a state court post-conviction action] is very different from the standard, discussed hereinabove [], applicable to determining whether pro se federal habeas petitions adequately state a federal claim,” referring to the standard regarding habeas petitions as: “That liberal construction requires the Court to read a claim as asserting legal theories suggested by the facts alleged.”]); BRIAN R. MEANS, REQUIRED SPECIFICITY OF ALLEGATIONS, POSTCONVICTION REMEDIES § 12:6 (2018) (“To the extent that Respondents rely on Petitioner's failure to enunciate his legal theory, they demand too much . And while the applicant must ‘specify all the grounds for relief available,' ‘no statute or rule requires that a petition identify a legal theory or include citations to legal authority.'”); Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and SelfRepresented Litigants, 27 J. NAT'L ASS'N ADMIN. L. JUDICIARY 97, 124-25 (2007).
Brown fails to meet the requisite standard of stating sufficient facts underpinning his claims and sufficiently enunciating the denial of a specific federal constitutional right in his habeas petition.
B. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008). In non-capital cases arising in Arizona, the “fair presentment” and “highest court” tests are satisfied if the habeas petitioner presented the federal habeas claim to the Arizona Court of Appeals in their direct appeal or in a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date, 619 F.Supp.2d at 762-63.
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition; additionally, in both the state court action and his § 2254 pleading the petitioner must supply the same facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004).
A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id. at 92. Pursuant to this doctrine, an implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 123031 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). It is the petitioner's burden to establish cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998); Date, 619 F.Supp.2d at 766. Under the “cause” prong of this test, Brown bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules for the presentation of claims arising from his conviction. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the State's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner's lack of legal expertise is not cause to excuse a procedural default. See, e.g., Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 908 (9th Cir. 1986). To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage,” infecting his criminal proceedings with “error of constitutional dimensions.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011).
Petitioners who default federal habeas claims in state court may also obtain review if they show that failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, they have a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). See also Valencia v. Ryan, 2012 WL 1681991, at *4 (D. Ariz. Jan. 9, 2012). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011).
No claims were properly exhausted in Brown's post-conviction action because Brown failed to raise any claims in his post-conviction action, which was dismissed for his failure to time file any claims. (ECF No. 10-1 at 130). Brown did not raise his second, third, or fourth habeas claims in his direct appeal. Accordingly, Brown's second, third, and fourth habeas claims were not properly exhausted and, because Arizona's rules regarding the waiver and the timeliness of post-conviction relief bar him from returning to the state courts to exhaust these claims, the claims are procedurally defaulted.
In his reply in support of his § 2254 petition Brown states:
Ground four claims stand alone as to the witnesses not identifying the defendant at trail. The respondents argue this ground is part of my ground one claim and thats ludacris. Ground one is about the trail judge error on evidence. While ground four is solely about the witnesses not testifying to the defendant being the shooter. Two seperate legitimate claims. [sic]
Claims two and three were not raised in state court because my appellate attorney did not raise them. ... My appellate attorney filed the claims she felt was my best chance at relief in the state courts. All the grounds I wanted my appellate attorney to file on my appeal was up to her discretion as she put it. How can I be held for the mistakes or negligence of my attorney when I was appointed her by the State of Arizona? If that's the case shouldn't that be grounds for ineffective assistant of counsel? Every ground I raised in my habeas corpus packet is what I discuss with my appellate attorney. . How am I held accountable for these failures made by the attorney I was appointed to by the state. Thats unfair and ineffective representation by the state attorney office.
When I was granted the option to file a pro-se PCR I did not know what to do. I did not have the money to afford a attorney to help me with the
process of filing a pro-se PCR. Once the PCR attorney advised me there were no colorable claims I assumed that was it with the PCR, and my next step was to try and hope I could get some type of federal relief. ... the respondents is acting like I'm suppose to know all this legal stuff and I don't. All I know is I'm innocent.(ECF No. 11 at 2-3).
Brown fails to establish cause for or prejudice arising from his procedural default of any of his federal habeas claims in the state courts. A petitioner's pro se status and ignorance of the law do not satisfy the cause standard. See, e.g., Hughes, 800 F.2d at 90809. To the extent Brown asserts ineffective assistance of appellate counsel as cause for his failure to properly exhaust his § 2254 claims, ineffective assistance of appellate counsel may establish cause for a procedural default of a claim in the state courts. See, e.g., Ortiz v. Stewart, 149 F.3d 923, 932, (9th Cir. 1998), overruled on other grounds as recognized by Apelt v. Ryan, 878 F.3d 800, 827-28 (9th Cir. 2017). However, “[t]o constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim.” Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). See also Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.”); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988). Brown did not present an ineffective assistance of appellate counsel claim in his state post-conviction action and, accordingly, any claim regarding appellate counsel's purported deficient performance was itself procedurally defaulted in the state courts and cannot establish cause for Brown's procedural default of his federal habeas claims. Because Brown fails to establish cause for his procedural default, the Court need not address the issue of prejudice. E.g., Date, 619 F.Supp.2d at 749.
Brown fails to show he is entitled to review of his claims under the “miscarriage of justice” doctrine. A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley, 523 U.S. at 623; Herrera v. Collins, 506 U.S. 390, 404, 416 (1993); Sawyer v. Whitley, 505 U.S. 333, 339 (1992); Valencia, 2012 WL 1681991, at *4. Brown presents no new reliable evidence, i.e., exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence, establishing his factual innocence. See Pratt v. Filson, 705 Fed.Appx. 523, 525 (9th Cir. 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 [petitioner] on this conviction.”).
C. Exhaustion of Brown's first claim for federal habeas relief
It is arguable whether Brown properly exhausted his first habeas claim in the state courts as a claim asserting the violation of a specific federal constitutional right. In his federal habeas petition Brown allows that his first § 2254 claim asserts the violation of a state constitutional right, rather than a federal constitutional right.
In his reply in support of his petition Brown asserts:
Respondents argue that ground one is non cognizable because the trail judge violation on the evidence was a Arizona Constitution error not a federal Constitution error. I am not savy with proper judicial legal terminology, but I thought the United States Constitution was over state and federal laws and courts. I have no money to afford an attorney to help me with this habeas corpus relief. Yes, the trail judge did not directly say to the jury his opinions about the evidence, instead the trail judge spoke his biasness to the prosecutor and the trail judge thoughts and comment was delivered to the jury by way of the prosecutor closing arguments. Article 6 section 27 of the Arizona Constitution was violated when the judge made a comment about the evidence whether the jury was present or not. [sic](ECF No. 11 at 1). He further contends:
Arizona judges take an oath to protect the constitution of the United States Federal and state, how can this claim be procedurally defaulted? In my ground one claim I never spoke about due process was denied. I only made reference to the trail judge violating the Article 6 section 27 of the Arizona Constitution. If the judge did not comment on the evidence the prosecutor would not have told the jury his opinions about the evidence and the outcome of the trail verdict may have been different. Converting state claims to
Federal claims I did not know anything about that process, how can that be held against me?(ECF No. 11 at 2)
To properly exhaust a federal claim in the state court the habeas petitioner must cite to the specific constitutional guarantee upon which he later bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Even if the basis of a federal claim is “self-evident” or if the claim would be decided “on the same considerations” under state or federal law, the petitioner must make the federal nature of the claim “explicit either by citing federal law or the decision of the federal courts ...” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001). A state prisoner does not fairly present a claim to the state court if the court must read beyond the pleadings filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27. The Ninth Circuit has specifically held that a petitioner's “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory...” fail to satisfy the fair presentment requirement. Castillo v. McFadden, 399 F.3d 993, 1002-03 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). And an allegation that a defendant's criminal proceedings included a violation of the defendant's state constitutional rights does not translate to a proper § 2254 claim that the defendant's federal constitutional rights were violated.
Brown fails completely to cite a specific federal constitutional guarantee in his § 2254 petition. And Brown's state appellate brief, although mentioning the federal constitutional amendments guaranteeing due process and a fair trial, cited only one federal court opinion, i.e., Lisenba, which did not address when a judge's comments on the evidence, particularly outside the presence of the jury, violated the defendant's rights to due process or a fair trial. Lisenba involved the introduction of evidence at trial of a coerced confession, the admission of “other acts” evidence, and the presentation in a postconviction proceeding of affidavits of witnesses averring their trial testimony was coerced. Lisenba did not speak to whether or when a trial court's comments on witnesses' testimony, made outside the presence of the jury, might violate the defendant's rights to a fair trial and due process. General appeals to broad constitutional principles, such as due process and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim in the state courts. Lyons, 232 F.3d at 669; Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (holding it was insufficient for purposes of exhaustion for a prisoner to have made “a general appeal to a constitutional guarantee,” such as a naked reference to “due process,” or to a “constitutional error” or a “fair trial”).
Although Brown asserted on appeal that the trial court erred by denying his motion in limine, and that the judge's comment regarding witnesses not identifying Brown in court as the perpetrator of the crime was based on fear (given that they had identified Brown in photo line-ups and two of the witnesses were acquainted with Brown prior to the crime), Brown did not clearly present this claim to the state appellate court as a claim that his federal constitutional right to due process was violated.
D. Merits of Brown's first claim for federal habeas relief
To the extent Brown's first claim for relief was properly exhausted in the state courts, the claim may be denied on the merits because the state court's denial of the claim was not clearly contrary to nor an unreasonable application of federal law.
A federal court cannot grant habeas corpus relief to a state prisoner on a claim rejected on the merits by the state courts unless the petitioner demonstrates the state court's decision denying the claim “was contrary to” or an “unreasonable application” of federal law as clearly established in the holdings of the Supreme Court at the time of the state court decision, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 9798 (2011). See also 28 U.S.C. § 2254(d)(1). This standard is “difficult to meet.” Harrington, 562 U.S. at 102. It is a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted).
A state court's decision is “contrary to” federal law if it applies a rule of law that contradicts the “controlling” law set forth in Supreme Court cases at the time of the state court's decision, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and arrives at a result different from Supreme Court precedent. E.g., Mitchell v. Esparza, 540 U.S. 12, 14 (2003). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court's decision.'” Id., citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
The “threshold question under AEDPA” is whether the petitioner asks the Court to apply a rule of law that was clearly established at the time his state-court conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Id. at 381.
To the extent Brown legitimately asserted a federal constitutional claim in his appeal, he argued a denial of his right to due process and a fair trial. The state appellate court's denial of Brown's claim was not clearly contrary to nor an unreasonable application of federal law, because there is no United States Supreme Court opinion holding that it violates a defendant's right to due process or a fair trial when a prosecutor makes a closing argument which includes an idea regarding witnesses' testimony that the judge mentioned outside the presence of the jury. The only “clearly established” federal law regarding the impropriety of a judge commenting on evidence is with regard to the judge themself making such a comment in the presence of the jury. As the Arizona Court of Appeals noted, Brown cited no case espousing the “vehicle” theory of a due process violation presented in his appellate brief, i.e., one finding due process is violated when a judge's particular theory about a witness's failure to make an in-court identification, outside the presence of a jury, is presented to the jury by the prosecutor in closing argument without any mention of the judge as the originator of the argument. The federal courts' jurisprudence does not indicate that any constitutional violation occurred in this circumstance. Compare Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (noting no error when a judge asked witnesses to explain answers and clarify testimony regarding evidence, even when the judge's questions to the witnesses allowed them to “emphasize testimony helpful to the prosecution, or elicited answers detrimental to the defense”); United States v. Gladfelter, 168 F.3d 1078, 1083 (8th Cir. 1999) (“we see no substantial prejudice on this record. The jury was properly instructed as to the burden of proof, and most of the exchange between defense counsel and the trial judge occurred outside the presence of the jury.”); United States v. Davis, 785 F.2d 610, 617 (8th Cir. 1986); Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1330 (8th Cir. 1985) (acknowledging that comments made by the district court outside the presence of the jury do “not affect the jury”).
Considering the trial court's comments in the context in which they were made, it is difficult to find that they were prejudicial. The court's statement in denying the motion for a judgment of acquittal was merely a restatement of Fed. R. Crim. P. 29(a) and a comment on the sufficiency of the evidence for the trial to go forward. Moreover, neither statement was made in the presence of the jury, further weakening Davis' allegations of trial prejudice. See United States v. Block, 755 F.2d 770, 776 (11th Cir. 1985). A few isolated comments such as these simply are not sufficient to show trial prejudice or plain error. United States v. Davis, 785 F.2d 610, 617 (8th Cir. 1986)
Indeed, the federal courts have held to the contrary of Brown's contentions. That the prosecutor made the subject statements to the jury does not implicate the same concerns as if the judge had made the comments to the jury. In an adversarial system the judge is not allowed to comment on the weight of the evidence to the jury because the judge is not acting as an adversary. Additionally, a judge's statements before the jury do carry a weight with the jury that the prosecutor's statements do not carry. In this matter, because the jury did not know that the judge ever postulated that the failure to identify Brown was based on fear, the prosecutor's suggestion to that effect did not carry any unfounded weight with the jury. Because the comment was not made in their presence, the trial court's comment did not influence the prospective jurors. See United States v. Jamison, 78 F.3d 595 (9th Cir. 1996) (finding no error where the judge's “comment was made outside the presence of the jury, in the course of an apparently lengthy session dealing with the admission of bank records.”); United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982) (finding no error where the “vast majority of the specific instances cited in defendants' briefs took place outside the presence of the jury.”); United States v. Hill, 643 F.3d 807, 845 (11th Cir. 2011) (stating that comments made outside the presence of the jury cannot provide the basis for reversal). Much of the concern about an otherwise inappropriate judicial act or remark is neutralized by the absence of the jury. See United States v. Morrow, 977 F.2d 222, 225 (6th Cir. 1992); Sheppard v. Bagley, 604 F.Supp.2d 1003, 1036 (S.D. Ohio 2009) (“The Magistrate Judge also found certain of the trial court's comments disparaging mental health evidence to be “insensitive,” but not of constitutional consequence because they were made outside the presence of the jury.”), aff'd, 657 F.3d 338 (6th Cir. 2011); Gonzales v. Ryan, 2015 WL 4755068, at *13 (D. Ariz. Aug. 12, 2015).
III. Conclusion
Brown fails to present a federal constitutional claim in his § 2254 petition, which does not mention the United States Constitution or any amendment to or specific guarantee provided in the Constitution. Additionally, Brown failed to properly exhaust any of his § 2254 claims to the state courts by fairly presenting the claims, as federal constitutional claims, in a procedurally correct manner. Brown fails to establish cause and prejudice with regard to his procedural default of his claims and does not present any evidence supporting a claim of actual, factual innocence. Furthermore, Brown's first claim for federal habeas relief may be rejected on the merits.
IT IS THEREFORE RECOMMENDED that the amended petition seeking a federal writ of habeas corpus at ECF No. 5 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foil. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Brown seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.