Opinion
CV-22-01999-PHX-ROS (ASB)
10-12-2023
Michael Devaughn Johnson, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE ALISON S. BACHUS, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Michael Devaughn Johnson (“Petitioner”), who is confined in the Arizona State Prison Complex - Eyman, has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1) and a document titled Petitioner's Separate Arguments to Petition for Writ of Habeas Corpus (Doc. 2). For the reasons that follow, the Court recommends that the Petition be denied and dismissed.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-22-01999-PHX-ROS (ASB).
PROCEDURAL HISTORY
I. State Proceedings
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court s opinion should not be afforded the presumption of correctness).
In May 2017, while Johnson was incarcerated in an Arizona correctional facility, a corrections officer found a cell phone inside an open bag of chips on top of a cabinet in Johnson's cell. The officer believed the cabinet was Johnson's because his cellmate's belongings were in the other cabinet. Investigators extracted data from the phone and found photographs of Johnson along with text messages and call records to his wife. Johnson was charged with promoting prison contraband under A.R.S. § 13-2505(A)(3).
During the state's case-in-chief, Johnson represented himself with the help of advisory counsel. After the state rested, however, Johnson asked advisory counsel to take over for the remainder of the trial. Johnson then testified his cellmate had possessed the phone and Johnson's wife had been communicating with the cellmate, believing him to be Johnson, including during an eleven-minute long phone call.
On the final day of trial, the jury reached a verdict in about an hour and a half. Johnson, who had been in custody for the duration of the trial, was not present when the verdict was to be read. Johnson's counsel waived his presence, and the jury's guilty verdict was announced. Johnson arrived in the courtroom a few minutes later, and a sentencing date was set. He was subsequently sentenced to a five-year term of imprisonment, to be served at the completion of his existing term.(Doc. 11-1, Exh. A, at 2-3.)
B. Direct Appeal
Petitioner filed a direct appeal where he made two arguments:
I. The trial court violated his right to be present at all stages of trial because the jury returned its verdict in his absence.
II. The trial court abused its discretion by denying his request for his appointed investigator to enter the prison and photograph his cell.(Doc. 11-1, Exh. A, at 3, 5.) In its Memorandum Decision filed April 22, 2021, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. (Doc. 11-1, Exh. A.) Petitioner filed a petition for review in the Arizona Supreme Court that was denied on March 2, 2022. (Doc. 11-1, Exh. H.) The Mandate issued April 8, 2022. (Id.)
C. Post-Conviction Relief Proceedings
In October of2021, Petitioner timely filed a pro se Notice of Post-Conviction Relief (“PCR”) under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 11-1, Exh. I.) On October 13, 2021, Petitioner filed a Petition for Post-Conviction Relief in which he raised two claims of ineffective assistance of trial counsel, and two claims of ineffective assistance of appellate counsel. (Id.) On February 18, 2022, the PCR court stayed the PCR proceedings pending the mandate from the appellate court. (Doc. 11-2, Exh. P.) On May 20, 2022, the PCR court denied Petitioner's PCR petition in its entirety, stating Petitioner “fail[ed] to show any prejudice and therefore, fail[ed] to make a colorable claim.” (Doc. 11-2, Exh. R.)
On June 6, 2022, Petitioner filed a Notice of Post-Conviction Relief (Doc. 11-2, Exh. S) and a successive PCR petition (Doc. 11-2, Exh. T) based on a claim of newly discovered evidence. The PCR court dismissed the petition as untimely and stated Petitioner “fail[ed] to meet the requirements [for a hearing] under Rule 32.1(e)(3).” (Doc. 11-2, Exh. W.) Petitioner filed a petition for review (Doc. 11-2, Exh. X), and on November 9, 2022, the Arizona Court of Appeals granted review but denied relief (Doc. 11-2, Exh. AA). Petitioner did not file a motion for reconsideration and did not seek review by the Arizona Supreme Court. (Doc. 11-2, Exh. BB.) The Mandate issued January 25, 2023. (Id.)
II. Federal Proceedings
A. Petitioner's Habeas Petition
On November 23, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In his Petition and supporting memorandum (Doc. 2), Petitioner asserts:
GROUND ONE: The Arizona Court of Appeals' finding that Petitioner's newly discovered evidence “would not” probably change the verdict in a new trial was an unreasonable application of clearly established federal law and unsupported by evidence.
GROUND TWO: Petitioner was denied his Sixth Amendment right to counsel during his “entire defense” when the trial
court's final instructions to the jury stated that “defendant will be representing himself,” even though Petitioner was represented by counsel, and the Arizona Court of Appeals' finding that “structural error analysis does not apply here” was contrary to clearly established federal law.
GROUND THREE: The Arizona Court of Appeals' “failure to presume prejudice where the trial court's final jury instruction was totally absent of counsel s representation during ‘critical stages' of the trial” was an unreasonable application of clearly established federal law.
GROUND FOUR: The Arizona Court of Appeals' finding that Petitioner failed to show he was prejudiced by the trial court's issuance of the verdict while Petitioner was involuntarily absent was an unreasonable application of clearly established federal law.(Doc. 2 at 2.)
In response, Respondents argue: (1) Ground One is procedurally defaulted and not cognizable, (2) Grounds Two and Three are procedurally defaulted, and (3) Ground Four fails on the merits. (Doc. 11.) Petitioner filed a Reply maintaining the contrary and further requested this Court to allow him to “submit his claim of ineffective assistance of appellate counsel if this Court denies Petitioner's] claims 1, 2, and 3 as defaulted.” (Doc. 13 at 1.) To clarify the record, the Court afforded Petitioner the opportunity to amend his Petition by September 11, 2023, or the Court would proceed on the Petition as briefed. (Doc. 15.) No amended petition having been filed, the Court addresses Petitioner's original habeas Petition (Doc. 1).
ANALYSIS: HABEAS PETITION
I. Applicable Law
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Standard of Review
1. Exhaustion
To seek federal habeas review, a state prisoner must also exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them “in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) and O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Date v. Schriro, 619 F.Supp.2d 736, 762 (D. Ariz. 2008) (quoting O'Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires the Court to engage in a two-prong analysis. First, the Court must consider whether the petitioner invoked “one complete round” of the state's established review process for any claim raised on federal habeas review. See O'Sullivan, 526 U.S. at 845. The Court then must determine whether the petitioner pled the federal nature of the claim with “considerable specificity” before the state courts. See Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005); see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding “[a] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.”) (internal citations omitted).
a. Proper Forum
“To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by ‘fairly presenting' them to the state's ‘highest' court in a procedurally appropriate manner.” Date, 619 F.Supp.2d at 762 (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) and Baldwin, 541 U.S. at 29). In non-capital cases arising in Arizona, the “highest court” requirement is satisfied by fair presentation to the Arizona Court of Appeals. Date, 619 F.Supp.2d at 762 (discussing Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007) and Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Thus, claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes, 196 F.3d at 1010.
b. Specificity of Federal Basis
In addition to presenting his claims to the proper court, a state prisoner must fairly present his claims to the state court by describing both the operative facts and the federal legal theory on which his claims are based. See Date, 619 F.Supp.2d at 764; Baldwin, 541 U.S. at 33; Duncan, 513 U.S. at 365-66 (holding petitioners must fairly present federal claims to state courts in order to give the State the “opportunity to pass upon and correct” alleged violations of federal rights, which requires petitioners to alert the state courts that they are asserting claims under the federal Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
In the Ninth Circuit, petitioners “must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law. 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.” Insyxiengmay, 403 F.3d at 668; see also Picard, 404 U.S. at 278 (holding fair presentation of a claim in state courts requires petitioners to present the state courts with the “substantial equivalent” of the claim raised in federal court).
2. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas petitioner's claims may be precluded from federal review in either of two ways.” Date, 619 F.Supp.2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was actually raised in state court but found by that court to be defaulted on state procedural grounds,” or (2) “a state prisoner failed to present his federal claims to the state court, but returning to state court would be ‘futile' because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims.” Id. (internal citations omitted). “Technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy. Id. at 766. Federal courts are barred from reviewing claims that were decided on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. at 729.
If a petitioner failed to exhaust his claim and is now procedurally barred from returning to state court to present his claim, then his claim is procedurally defaulted and barred from federal habeas corpus review. See Coleman, 501 U.S. at 735 n.1. A petitioner can overcome procedural default, and thus bar of his claim, only by showing cause for the default and resulting prejudice or that a fundamental miscarriage of justice will result from the denial. Id. at 750. To show a “fundamental miscarriage of justice,” a petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations and citations omitted). Under this standard, “actual innocence” means “factual innocence, not mere legal insufficiency.” Id.
II. Discussion
A. Ground One
1. Petitioner's Claim
In Ground One, Petitioner contends the Arizona Court of Appeals' finding that Petitioner's newly discovered evidence “would not” probably change the verdict in a new trial was an unreasonable application of clearly established federal law and unsupported by the evidence. (Doc. 2 at 2.) Petitioner argues that had the new evidence been presented to the jury, it would have shown that the officer possessed the phone, not Petitioner. (Doc. 2 at 5.) Petitioner asserts the new evidence discredits the officer's trial testimony and would “probably change the verdict in a new trial.” (Id. at 6.)
After raising this claim on his successive PCR petition, the trial court dismissed the petition as untimely and stated Petitioner “fail[ed] to meet the requirements [for a hearing] under Rule 32.1(e)(3), as the alleged newly discovered evidence would merely be used to impeach a State's witness at best and is unlikely to have changed the judgment or sentence as the evidence at trial was overwhelmingly against the Petitioner.” (Doc. 11-2, Exh. W.) On review, the Arizona Court of Appeals denied relief and affirmed the trial court's ruling. (Doc. 11-2, Exh. AA, at 5.)
2. Analysis
Petitioner's Ground One has been properly exhausted in the state courts but is procedurally defaulted and not cognizable on federal habeas review. In his successive PCR petition and petition for review, Petitioner cited Arizona case law, cases from the First and Seventh Circuits, and Rule 33 of the Federal Rules of Criminal Procedure. (Doc. 11-2, Exhs. T, X.) Petitioner's citations were used to support: (1) his argument that impeachment evidence is grounds for a new trial if it substantially undermines testimony that was critical at trial, (2) what constitutes constructive or physical possession, and (3) that it is an abuse of discretion when the court's findings are wholly unsupported by the evidence. (Id.) In his petition for review, Petitioner separately labeled state and federal law arguments to clearly indicate he was raising a claim on state and federal grounds. (Doc. 11-2, Exh. X, at 92, 94.) Although the appeals court decided this claim based solely on Arizona law, Petitioner did present the federal basis of the claim when citing to federal case law and the Federal Rules of Criminal Procedure. Petitioner has therefore fairly presented this ground to the state courts, as required for purposes of exhaustion. Baldwin, 541 U.S. at 29; Insyxiengmay, 403 F.3d at 668.
However, although the court of appeals went on to address the merits of the claim after Petitioner's PCR petition was dismissed as untimely, the claim is still procedurally defaulted here. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (holding “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”). The state courts denied relief on independent and adequate state law grounds when dismissing Petitioner's PCR petition as successive and untimely. See Ariz. R. Crim. P. 32.7(a) (timeliness); Ariz. R. Crim. P. 32.1 (scope of remedy). This Court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729. The trial court found the PCR petition was successive and untimely pursuant to the Arizona Rules of Criminal Procedure and the appeals court affirmed the finding. (Doc. 11-2, Exhs. W, AA.) That decision is independent of the federal question and adequate to support the judgment. Accordingly, the procedural default doctrine applies to this claim. Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will result from the denial. Coleman, 501 U.S. at 750. Petitioner does not allege, or prove, either of the above.
Moreover, Petitioner's Ground One also fails as it pertains to an alleged error in the state post-conviction review process. Such an error is not cognizable on federal habeas corpus review. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”). A habeas petitioner must allege that his detention violates the United States Constitution, a federal statute, or treaty. Id. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.”).
While Petitioner argues that the state court erred by not granting him a rehearing based upon the alleged new evidence (Doc. 11-2, Exh. X), this claim remains a state postconviction relief issue and not a federal one. Because Petitioner has not established a claim of an independent constitutional violation, Petitioner's Ground One is not cognizable here.
Accordingly, Petitioner's Ground One is procedurally defaulted and not cognizable on federal habeas review.
B. Ground Two
1. Petitioner's Claim
In Ground Two, Petitioner contends he was denied his Sixth Amendment right to counsel during his “entire defense” when the trial court's final jury instructions stated “defendant will be representing himself,” even though Petitioner was represented by counsel. (Doc. 2 at 2.) Petitioner further contends the Arizona Court of Appeals' finding that “structural error analysis does not apply here” was contrary to clearly established federal law. (Id.) In his first PCR petition, Petitioner argued his appellate counsel was ineffective for not challenging the trial court's reading of a final jury instruction concerning Petitioner's self-representation. (Doc. 11-1, Exh. J.) The PCR court held that the claim did not warrant relief, finding “Petitioner represented himself for a majority of the trial, and as a result, it was absolutely necessary for the jury instruction to be included as part of the final instructions.” (Doc. 11-2, Exh. R.) Petitioner then raised various related claims on his petition for review.
On review, the Arizona Court of Appeals held that the jury instruction was “consistent with Revised Arizona Jury Instructions (RAJI) Standard Criminal 6 (defendant's right to represent himself).” (Doc. 11-2, Exh. AA, at 5.) It stated, “[b]ecause [Petitioner] represented himself at trial-including during voir dire, opening statements, and the state's case-in-chief-the court properly gave the instruction.” (Id.) Addressing Petitioner's structural-error argument, the appeals court ruled, “[Petitioner] suggests that a structural-error analysis applies because he was denied the right to counsel. The record belies that assertion...[ Petitioner] had advisory counsel at the start of trial, and that attorney took over for [Petitioner] when he requested.” (Id.) In concluding its denial of relief, the appeals court stated that it agreed with the trial court-the instruction on self-representation was necessary. (Id. at 6.)
2. Analysis
Petitioner's Ground Two has been properly exhausted in the state courts. While Petitioner did not state this habeas claim verbatim in the state courts, Ninth Circuit precedent requires the Court to liberally construe filings from pro se litigants. See Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). Petitioner argued the same factual substance and legal theory in his PCR petition when arguing his appellate counsel was ineffective for not raising the right to counsel issue on direct appeal. (Doc. 11-1, Exh. J.) Similarly, the Arizona Court of Appeals also addressed this claim on the merits. That court stated, Petitioner “argues the trial court erred in determining the jury instruction on selfrepresentation was ‘necessary.' He contends the instruction was improper because, as given, it ‘failed to explicitly recognize any representation by counsel.'” (Doc. 11-2, Exh. AA, at 5.) As discussed, supra, the appellate court ruled that the instruction was consistent with the Revised Arizona Jury Instructions, it was necessary, and that the jury was adequately advised of the change in counsel. (Id.)
As evidenced by the court of appeals' holding on Petitioner's structural-error analysis argument and its ruling that Petitioner was not denied the right to counsel, the Court concludes Petitioner's Ground Two claim has been properly exhausted. See Swoopes, 196 F.3d at 1010; Sandgathe v. Maass, 314 F.3d 371, 377 (9th Cir. 2002) (holding when a state court has in fact ruled on a federal constitutional claim, there is no point in asking whether that court had a full and fair opportunity to do so) (internal quotations omitted); Schiers v. People of State of Cal., 333 F.2d 173 (9th Cir. 1964) (holding exhaustion may be satisfied if the facts, or contentions arising from them, urged in federal court have been presented in state court). Accordingly, the Court will address Petitioner's Ground Two on the merits.
The Court applies the AEDPA's standard of review to the last reasoned state-court decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021). Under the AEDPA, the Court must defer to a state court's decision on any claim that was adjudicated on the merits unless the decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Noguera, 5 F.4th at 1034 (quoting 28 U.S.C. § 2254(d)). This is a “highly deferential standard for evaluating state-court rulings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). Here, the last state court decision is that of the Arizona Court of Appeals. (Doc. 16-3, Exh. HH, at 2.) It is Petitioner's burden to show that the state court's denial was either: (1) contrary to clearly established federal law; (2) involved an unreasonable application of such law; or (3) was based on an unreasonable determination of the facts in light of the record before the court. Harrington v. Richter, 562 U.S. 86, 100 (2011) (internal quotations and citations omitted).
Petitioner is unable to establish any prong under 28 U.S.C. § 2254(d). First, the trial court gave the following self-representation jury instruction:
Every defendant has a right to represent himself. The Defendant will be representing himself with the assistance of an advisory lawyer. The Defendant's decision to represent himself means that he will be required to follow the same rules and procedures as any lawyer.
You should not let the fact that the Defendant has chosen to represent himself affect your deliberations in any way.(Doc. 11-2, Exh. AA, at 5.) The record shows Petitioner represented himself for a significant amount of the trial, including voir dire, opening statements, and the state's casein-chief. (Id.) During discussion about the instruction outside the presence of the jury, the trial judge acknowledged that the jury needed to know Petitioner had the right to represent himself. (Doc. 11-1, Exh. C, at 8-9.) Thus, the self-representation jury instruction was necessary.
Second, the record further shows when Petitioner requested advisory counsel to take over, the trial court informed the jury that the “circumstances have changed,” Petitioner is “no longer representing himself,” and advisory counsel “is now officially defense counsel.” (Doc. 11-2, Exh. AA, at 5.) The Court can find no constitutional infirmity in the trial court's statement to the jury. The jury instruction and the trial court's statement that advisory counsel was taking over did not violate Petitioner's Sixth Amendment right to counsel. The trial court was responsive to Petitioner's changing preference regarding self-representation. The trial court had to inform the jury as to the change in representation, but also safeguard Petitioner's rights by giving the self-representation instruction as Petitioner had represented himself for a significant portion of the trial.
Accordingly, Petitioner has failed to demonstrate that the Arizona Court of Appeals' denial of relief was contrary to established federal law, constituted an unreasonable application of such law, or was based on an unreasonable factual determination. Section 2254(d) applies to this claim and the Court recommends that Ground Two be denied.
C. Ground Three
1. Petitioner's Claim
In Ground Three, Petitioner contends the Arizona Court of Appeals unreasonably applied established federal law when it failed to presume prejudice based on the trial court's final jury instruction. (Doc. 2.) Petitioner argues the jury instruction was “totally absent” of counsel's representation during “critical stages” of the trial. (Id.) On his petition for review, Petitioner raised nine claims. (Doc. 11-2, Exh. X.) Six of those claims concerned the self-representation jury instruction. (Id.)
The Arizona Court of Appeals summarized Petitioner's argument regarding the jury instruction as follows: “[Petitioner] next argues the trial court erred in determining the jury instruction on self-representation was ‘necessary.' He contends the instruction was improper because, as given, it ‘failed to explicitly recognize any representation by counsel.' And he reasons that appellate counsel was ineffective for failing to raise the issue, given that ‘final jury instructions are most critical to a trial.'” (Doc. 11-2, Exh. AA, at 5.) The appeals court addressed prejudice when ruling the jury instruction was “consistent with the Revised Arizona Jury Instructions” and the trial court “properly gave the instruction.” (Id.)
2. Analysis
Petitioner's Ground Three is not a cognizable issue on federal habeas review. Petitioner is arguing the trial court's jury instruction on self-representation was erroneous, denied him his Sixth Amendment right to counsel, and that the appeals court unreasonably applied federal law when ruling the instruction did not prejudice him. (Doc. 2.) However, state jury instructions are not cognizable issues on federal habeas review unless the instruction was “so fundamentally unfair as to deny due process.” Shepherd v. Nelson, 432 F.2d 1045, 1046 (9th Cir. 1970) (“Habeas corpus is not available to set aside a conviction on the basis of an erroneous jury instruction unless the error rendered the trial so fundamentally unfair as to deny due process.”); see also Estelle, 502 U.S. at 71-72 (holding “the fact that the [jury] instruction was allegedly incorrect under state law is not a basis for habeas relief.”).
As discussed, supra, the Arizona Court of Appeals held that the self-representation jury instruction was proper as a matter of state law. This Court is bound by that ruling as to state-law matters unless it denied Petitioner due process. See Estelle, 502 U.S. at 68 (“a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). This Court agrees with that analysis. The self-representation jury instruction was proper and necessary. Petitioner represented himself for a significant portion of trial before requesting advisory counsel take over for the remainder of his defense. Thus, the instruction was properly given and did not prejudice Petitioner or deny him due process.
Accordingly, the Arizona Court of Appeals did not unreasonably apply clearly established federal law, nor was its decision based on an unreasonable determination of the facts. The Court recommends that Ground Three be denied.
D. Ground Four
1. Petitioner's Claim
In Ground Four, Petitioner argues the Arizona Court of Appeals unreasonably applied clearly established federal law when it held Petitioner failed to show he was prejudiced by the trial court's issuance of the verdict while Petitioner was involuntarily absent. (Doc. 2.) Petitioner raised this claim on direct appeal when he argued the trial court violated his right to be present at all stages of trial because the jury returned its verdict in his absence. (Doc. 11-1, Exh. A, at 3.)
The Arizona Court of Appeals held that Petitioner's claim failed as he had not demonstrated that the alleged error was prejudicial. (Id. at 4.) The appellate court specifically stated, “[Petitioner] has not pointed to any evidence or indication that jurors might have changed their verdict had he been present” and Petitioner “had the opportunity to ask questions and make a record following his return to the courtroom, but he did not do so.” (Id. at 5.) It concluded by noting Petitioner also did not “raise the issue in his motion for a new trial or before the trial court at sentencing.” (Id.)
2. Analysis
Petitioner properly exhausted Ground Four in the state courts, therefore, the Court will analyze the claim on the merits. This Court reviews the appellate court's decision as the last reasoned state court decision to address Petitioner's claim. Noguera, 5 F.4th at 1034.
The decision of the Arizona Court of Appeals was not objectively unreasonable. Under Rule 19.2 of the Arizona Rules of Civil Procedure and the Sixth Amendment of the United States Constitution, a criminal defendant has the right to be present at all critical stages of trial. “[A] habeas petitioner is not entitled to relief unless the record demonstrates the trial error ‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal citation omitted). Additionally, “even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right ‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)). However, the privilege of presence is not guaranteed “when presence would be useless, or the benefit but a shadow.” Kentucky, 482 U.S. at 745 (internal quotations and citation omitted). Thus, a criminal defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome, if his presence would contribute to the proceeding's fairness or reliability. Id., see also Thomas v. Goldsmith, 979 F.2d 746, 748 (9th Cir. 1992) (same). However, the privilege may be lost by consent or conduct. See Snyder, 291 U.S. at 106.
Petitioner argues the court of appeals unreasonably applied clearly established federal law when it found he failed to establish prejudice by his absence from the reading of the verdict. (Doc. 2.) The Arizona Court of Appeals analyzed trial counsel's waiver of Petitioner's right to be present for the reading of the verdict, and stated “[a]ssuming, without deciding, that the trial court erred by accepting counsel's waiver of [Petitioner's] right to be present, [Petitioner's] claim nevertheless fails because he has not demonstrated the alleged error was prejudicial.” (Doc. 11-1, Exh. A, at 4.) That court cited to Ninth Circuit precedent, Rice v. Wood, 77 F.3d 1138, 1143 (9th Cir. 1996), and quoted: “In two centuries of state and federal case law, remarkably few opinions even mention the possibility that defendant's presence may cause jurors to have second thoughts when they return the verdict. Experience, too, shows that jurors seldom have a change of heart when polled, and there is absolutely no evidence for the proposition that, when this does occur, it is influenced by defendant's presence.” (Doc. 11-1, Exh. A, at 5).
The record shows Petitioner was present for the entirety of the three-day trial, except for the rendering of the verdict. (Doc. 11-1 at 7, 13, 19, 26, 37, 51, 53, 69, 72, 80, 87, 88, 90, 131, 135.) It further establishes Petitioner had the opportunity to ask questions and make a record following his return to the courtroom after the verdict was read, but Petitioner did not do so. (Doc. 11-1 at 135-37.) Petitioner also did not raise the issue in his motion for new trial or before the trial court at sentencing. (Doc. 11-1, Exh. A, at 5.) Based on these facts, the appellate court determined Petitioner failed to establish prejudice. (Id.) Similarly, in the instant Petition, Petitioner does not proffer any affirmative evidence to show that his presence would have changed the jury's verdict. Petitioner has made no showing of prejudice resulting from his absence. His speculation that individual jurors may have changed their minds, had they been required to affirm the verdict in his presence, is wholly insufficient to establish prejudice. Additionally, Petitioner's advisory counsel was present to protect Petitioner's rights when the verdict was returned, and while the jury was not polled, when asked if it was their true verdict, they responded affirmatively. (Doc. 11-1, Exh. C, at 111; Doc. 11-2, Exh. R.)
In his Reply, Petitioner argues that because his presence during a jury poll would have been “useful,” he had a right to be present. (Doc. 13 at 3.) In support, he cites Snyder, 291 U.S. at 105-06. In Snyder, the Supreme Court held that a criminal defendant has a constitutional right to be present “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Id. The Court went on to state, “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08. Indeed, due process is not violated by a defendant's absence when his “presence would be useless, or the benefit but a shadow.” Id. at 106-07. Snyder further recognized, however, that “the privilege may be lost by consent.” Id. at 106. Here, Petitioner's counsel waived his presence (Doc. 11-1 at 132), and Petitioner has cited the Court to no authority that states such a waiver constitutes prejudice. Instead, Petitioner seems to root his argument that his presence would have been “useful” during the reading of the verdict in a case that he describes as “showing that polling the jury has a useful purpose.” (Doc. 13 at 3.) In support, Petitioner cites to Humphries v. District of Columbia, 174 U.S. 190, 194 (1899). While Humphries certainly recognized the utility of polling a jury, Humphries ultimately observed that ajury poll “is not a matter which is vital, is frequently not required by litigants; and, while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict.” Id. Simply because a jury poll has a useful purpose does not equate to a finding that Petitioner's presence at the reading of the verdict had a reasonably substantial relation to the fulness of his opportunity to defend against the charge or that a fair and just hearing was thwarted by his presence. Snyder, 291 U.S. at 105-06. Further, it does not equate to a conclusion that the verdict would have changed if the jury had been polled. In short, Petitioner's argument is rooted in conjecture and fails.
Because Petitioner has failed to show that the state courts' rejection of the claim is contrary to or an unreasonable application of clearly established federal law, or is based on an unreasonable determination of the facts, the Court recommends that Ground Four be denied.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in this Petition. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.