Opinion
CV-23-00172-TUC-JGZ (JR)
07-18-2023
Manuel David Sesma, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Petitioner Manuel David Sesma (“Petitioner”), confined in the Arizona State Prison Complex-Winchester Unit in Tucson, Arizona, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”). (Doc. 1). This matter is on referral to this Court for Report and Recommendation. (Doc. 5). The Petition is fully briefed. (Doc. 8, 9). As more fully set forth below, this Court finds that the claim alleged in ground two is non-cognizable on habeas review and that all of the claims alleged in the Petition are procedurally defaulted without excuse and barred from habeas review. Accordingly, the undersigned recommends that the district court, after an independent review of the record, dismiss the Petition.
Factual and Procedural Background
Unless otherwise indicated, the Factual and Procedural Background is taken from Respondent's Limited Answer to Petition for Writ of Habeas Corpus and the exhibits thereto. (Doc. 8).
Petitioner's Conviction and Sentencing
The Arizona Court of Appeals recited the facts as follows:
On habeas review the facts as stated by the appellate court are presumed correct. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam).
¶2 In January 2015, Sesma and his girlfriend, F.L., had an argument and Sesma left their shared residence. F.L. later telephoned Sesma and asked him to remove his belongings. When he returned, “he was very upset” and pounded on the door to be let in. After F.L. opened the door, Sesma entered and “threw [her] against the counter and started punching [her] like a punching bag with his fist.” He then dragged F.L. by her leg into the kitchen, left briefly to retrieve a loaded gun from the bedroom, grabbed F.L. by the neck, and took her to the bedroom where he put the barrel of the gun inside her mouth. He held F.L. down by her neck with one hand and said, “[D]o you want to die ...?”
¶3 Sesma then released F.L.'s neck and threw her against some stereo speakers in the bedroom. She fell and grabbed her cell phone, but Sesma took it and threw it against the wall. Sesma eventually left, and F.L. went to her neighbor's house for help. Tucson Police Department (TPD) officers arrived and found F.L. visibly shaken with her face red, swollen, and in the process of bruising. The house was in a state of disarray, with the television, stereo speakers, and other household items knocked over. When officers spoke to Sesma the following day, he initially denied F.L.'s account, but later admitted pointing a gun at her, claiming F.L. had threatened him with a knife. He also admitted pushing her down onto the couch, but said he did not remember holding her by the neck.
¶4 Sesma was arrested and charged with three counts of aggravated assault. He thereafter posted bond and was released. About five months later, Sesma and F.L. resumed their relationship.
¶5 In 2017, while Sesma was awaiting trial on the 2015 charges, F.L. confronted him, alleging he had been unfaithful and slapped him. The next morning, F.L. told Sesma he needed to leave her residence. Sesma then grabbed and held F.L. by the neck, and she passed out. When she regained
consciousness, Sesma was dragging her by her arms into the bathroom and he had used a pocket knife to inflict a ten- centimeter gash across the left side of F.L.'s neck.
¶6 In the bathroom, Sesma cut his own wrist and neck, showed F.L. the cuts, and said, “[L]ook, this is what you wanted.” He then pushed blood out of his wrist and dripped it onto F.L. “from head to toe.” Sesma also collected blood from the floor and spread it on his own face and body. F.L. saw large clots of blood and said, “[W]here is that coming from,” but then noticed bleeding from her neck. Sesma placed the pocket knife in her hand, and squeezed her hand shut over it, asking her, “[A]re you dead now? Are you gone now?”
¶7 Sesma also grabbed a washcloth, smeared it with blood from the floor, and pressed it against F.L.'s mouth as he squeezed her nose. F.L. could not breathe and pretended to be dying. Sesma said “So you're dead, okay,” then stabbed F.L. in her side with the pocket knife, and she lost consciousness again. When she came to, she saw Sesma was not moving and tried to walk and eventually crawled to her brother's room and knocked on his door. F.L.'s brother opened the door and saw F.L. “laying down on the floor full of blood”; he told his wife to call 9-1-1.
¶8 TPD officers arrived and while they administered first aid to F.L., she told them she had been cut by “Manuel” and he had then intentionally cut himself. Both F.L. and Sesma were transported to a hospital where it was determined the gash to F.L.s neck had penetrated the muscle and her jugular vein, requiring emergency surgery.
¶9 When TPD detectives interviewed Sesma the next day, he initially claimed an unknown assailant had entered the house and attacked him and F.L., but later admitted he had “push[ed]” F.L. by the neck and struck her. He also admitted cutting her but claimed it had been an accident. Sesma was subsequently charged with attempted first-degree murder, four counts of aggravated assault, and kidnapping. The 2015 and 2017 cases were consolidated, and following a jury trial, Sesma was convicted as described above. The trial court sentenced him to a combination of concurrent and consecutive sentences totaling twenty-eight years' imprisonment.(Doc. 8-1 at 87-89).
Direct Appeal
Petitioner argued on appeal that the trial court misapplied the Arizona Rules of Evidence and violated the Confrontation Clause when it admitted hearsay at trial. (Doc. 81 at 9). The court of appeals rejected Petitioner's arguments and affirmed his convictions and sentences reasoning:
¶17 But aside from providing the definition of hearsay and labeling the testimony as such, Sesma has failed entirely to explain how any of the testimony was inadmissible. Indeed, the statements could readily fall under recognized hearsay exceptions validating their admission, as the state argues, and to which argument Sesma has not responded. See Ariz. R. Evid. 802, 803 (recognizing over twenty exceptions to the rule against hearsay, including excited utterances and statements made for the purpose of medical treatment). Accordingly, we find Sesma's sparse argument insufficient to demonstrate the trial court committed any error, let alone fundamental error. See State v. Moody, 208 Ariz. 424, n.9 (2004) (“[M]erely mentioning an argument [in an opening brief] is not enough.”); State v. Carver, 190 Ariz. 167, 175 (1989) (“Failure to argue a claim usually constitutes abandonment and waiver of that claim.”).
¶19 Sesma appears to make several additional claims that the admission of the complained-of-hearsay evidence denied him his constitutional right to confrontation. We find these claims waived, however, because Sesma has failed to develop any argument whatsoever on these points, only concluding that the testimony amounted to “unconfrontable hearsay.” The sole legal authority he cites in support is the standard under which we review confrontation claims. This is insufficient. See Moody, 208 Ariz. at 424, nn.9, 11; McCall, 139 Ariz. at 164. Additionally, to the extent Sesma intended to raise an issue related to one detective's testimony that F.L.'s statements were consistent both at a preliminary hearing and when she was interviewed, he has failed entirely to develop any related argument, therefore any such issue is waived. See Sanchez, 200 Ariz. 163, ¶8.(Doc. 8-1 at 90-91). The court of appeals' mandate issued on October 27, 2020. Id. at 94.
Post-Conviction Relief Proceedings
On December 2, 2020, Petitioner filed a notice of post-conviction relief (“PCR”). (Doc. 8-1 at 98). On September 7, 2021, Petitioner, through counsel, filed a Petition for Post-Conviction Relief raising two claims in a single ground for relief. (Doc. 8-1 at 109120). First, Petitioner claimed that his trial counsel was ineffective for failing to move for a mistrial when F.L. was permitted to testify when the trial court had already allowed the F.L.'s preliminary hearing testimony to be played for the jury. Second, he claimed his appellate counsel was ineffective in failing to raise the ineffectiveness of his trial counsel as alleged above on appeal. Id. at 116. The PCR petition was fully briefed. Id. at 122-150 (responses to PCR petition), 152-155 (reply in support of PCR petition).
In a July 14, 2022 ruling the trial court denied relief holding, in relevant part:
Here, the defendant's trial counsel was not ineffective for failing to move for a mistrial when the victim appeared on the fifth day of trial and testified. First, the trial court properly admitted the victim's prior testimony. The admission of F.L.'s prior testimony satisfies the Confrontation Clause requirements because (1) the victim was unavailable and (2) the defendant had the opportunity to cross-examine the victim at the preliminary hearing. Therefore, the admission of the preliminary hearing recording was proper.Id. at 161. The PCR court rejected Petitioner's argument that his appellate counsel was ineffective in failing to raise the ineffectiveness of his trial counsel on appeal finding:
Here, the defendant's appellate counsel raised several issues on direct appeal, arguing the trial court erroneously admitted hearsay evidence. State v. Sesma, 2020 WL 2096111, at *2 (App. 2020). Mr. Sesma's appellate counsel exercised her professional judgment in choosing which issues she thought were meritorious. Absent explicit evidence that appellate counsel's conduct revealed ineptitude, inexperience, or lack of preparation, this Court presumes that counsel acted properly. Mr. Sesma has not provided sufficient evidence rebutting this presumption. Further, there was no error in the admission of the victim's prior testimony. Therefore, Mr. Sesma has failed to show that appellate counsel acted unreasonably in failing to raise this issue on appeal.
Furthermore, the defendant claims that he would have received a new trial if the issue had been raised on appeal. However, the defendant does not offer evidence amounting to a reasonable probability that such an outcome would not be true, and, therefore, does not satisfy Strickland's prejudice prong. As
a result, the appellate counsel was not ineffective for failing to raise the issue.(Doc. 8-1 at 163-164).
Petition for Review
Petitioner, though counsel, filed a petition for review of the trial court's denial of his PCR petition. Id. at 166-185. On March 8, 2023, the state court of appeals granted review but denied relief. Id. at 187-190. The appeals court determined that Petitioner “provided no evidence and cited no authority suggesting competent counsel would have moved for a mistrial or objected” when the victim appeared on the fifth day of trial and testified. Id. at 189-190 ¶6. The appellate court did not address Petitioner's argument that the trial court erred in rejecting his claim that his appellate counsel should have raise the issue on appeal finding that “he has developed no argument that this claim would have prevailed on appeal.” Id. at 190 ¶7.
Habeas Proceeding
Petitioner filed his Petition on April 13, 2023 alleging three grounds for relief. (Doc. 1). In ground one, Petitioner claims a double jeopardy violation alleging the “crime was committed on one date one act sentenced to consecutive terms[.]” Id. at 5. In ground two, Petitioner asserts “invited error” claiming the “state committed invited error by playing recording of testimony then allowing ‘victim' to testify in person 5 days later.” Id. at 7. In ground three, Petitioner asserts “IAC” alleging that “counsel failed to object to consecutive sentences, failed to object to petitioner illegally sentenced[.]” Id. at 8.
The AEDPA Applies to the Petition
The Petition, filed after April 24, 1996, is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000). Under 28 U.S.C. § 2254(a), a district court may only entertain applications for writ of habeas corpus “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Federal habeas corpus relief “is unavailable for alleged error in the interpretation or application of state law.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does not lie for error of state law.” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at 67-68.
Generously construing the claims alleged in the Petition, this Court finds that the claims for relief alleged in grounds one and three allege violations of the U.S. Constitution or federal law. (Doc. 1 at 5, 8). However, this Court finds that the claim alleged in ground two fails to allege a violation of the U.S. Constitution or laws or treaties of the United States. In ground two, Petitioner alleges “invited error” and asserts that the “state committed invited error by playing [a] recording of testimony [and] then allowing [the] ‘victim' to testify in person [five] days later.” (Doc. 1 at 7). Petitioner does not reference any provision of the U.S. Constitution of other federal law in this ground for relief.
Accordingly, this Court finds that Petitioner's claim in ground two fails to assert a basis for federal habeas relief and is thus non-cognizable on habeas review.
Petitioner's Claims are Procedurally Defaulted Without Excuse
As explained below, this Court finds that all three grounds for relief alleged in the Petition are procedurally defaulted without excuse and barred from habeas review.
This finding is in the alternative with respect to the claim alleged in ground two of the Petition.
Exhaustion
A federal court may only consider a petitioner's application for a writ of habeas corpus if “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991). Exhaustion requires a petitioner to “fairly present” his federal claims to the trial court and thereafter “invok[e] one complete round of the State's established appellate review process,” presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a [PCR] petition . . . pursuant to [former] Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). A petitioner must then present his claims to the Arizona Court of Appeals. See Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005) (holding that “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). A habeas petitioner bears the burden of showing that he has exhausted his state court remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Procedural Default
A corollary to the exhaustion requirement is the procedural default doctrine, which limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court, and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004); see also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”). There are two types of procedural bars, express and implied. See Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
A claim is technically exhausted, but expressly procedurally defaulted, when a petitioner attempted to raise it in state court and the state court expressly applied a procedural bar resting on an independent and adequate state law ground to avoid considering the merits of the claim. See Nunnemaker, 501 U.S. at 802-05; see also Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (holding procedural default “applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements”) (quoting McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995)). Petitioner here did not attempt to raise any of the three grounds for relief alleged in the Petition in the state court below during his direct appeal and PCR proceedings. A claim is technically exhausted, but impliedly procedurally defaulted, when a petitioner has not raised a claim in state court and a return to state court to exhaust the claim would be futile in light of state procedural rules. See O'Sullivan, 526 U.S. at 848 (finding claims procedurally defaulted because habeas petitioner was time-barred from presenting his claims in state court); Coleman, 501 U.S. at 735 n.1 (noting that claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”).
Claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit into a narrow category of claims for which a successive PCR petition is permitted. See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b), 33.1(b)-(h) & 33.2(b)(1) (successive PCR petitions are limited to claims of: lack of subject matter jurisdiction; sentence not authorized by law or plea agreement; custody continues or will continue beyond sentence's expiration; newly-discovered material facts; defendant not at fault for failure to file a timely PCR notice; significant change in the law would probably overturn conviction or sentence; actual innocence).
Arizona's criminal procedural rules also require a PCR notice in a non-capital case be filed either “within 90 days after the oral pronouncement of sentence” or “within 30 days after the issuance of the mandate in the direct appeal, whichever is later” as stated in the applicable rule. See Ariz. R. Crim. P. 32.4(b)(3)(A); Ariz. R. Crim. P. 33.4(b)(3)(A); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness bar under former Rule 32.4(a) as a basis for dismissing an Arizona PCR petition distinct from preclusion under former Rule 32.2(a)); State v. Lopez, 323 P.3d 1164, 1165-66, ¶¶ 5-9 (Ariz. App. 2014) (discussing differences between the time-bar rule, former Rule 32.4(a), and the waiver rule, former Rule 32.2(a)(3)). An untimely PCR notice is permitted in the same category of claims that are exempted from the preclusion bar. See Ariz. R. Crim. P. 32.1(b)-(h), 32.4(b)(3)(B). If a claim does not fall within one of the narrow exceptions or is filed outside the time limits, a successive PCR notice is subject to summary dismissal. See e.g., State v. Diaz, 269 P.3d 717, 719-21, ¶¶ 5-13 (Ariz. App. 2012); State v. Rosario, 987 P.2d 226, 228 ¶ 7 (Ariz. App. 1999); State v. Jones, 897 P.2d 734, 735-36 (Ariz. App. 1995).
Because Arizona's preclusion rules (Rule 32.2 and 33.2) and time-bar rules (Rules 32.4 and 33.4) are both “independent” and “adequate,” either when specifically applied to a claim by an Arizona court, or when precluding a return to state court to exhaust a claim, they procedurally bar subsequent review of the merits of that claim by a federal habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2022) (finding determinations made under Arizona's procedural default rule are “independent” of federal law; Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (finding that unexhausted claims were procedurally defaulted because petitioner was “now time-barred under Arizona law from going back to state court”); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting the argument that Arizona courts have not “strictly or regularly followed” Rule 32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (rejecting the assertion that Arizona courts' application of procedural default rules had been “unpredictable and irregular”); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (noting that waiver and preclusion rules are strictly applied in PCR proceedings).
As mentioned, Petitioner failed to raise any of the grounds for relief alleged in the Petition in his direct appeal and PCR proceeding. See Doc. 8-1at 3-43 (opening brief on direct appeal), 109-120 (petition for PCR), 166-176 (petition for review of denial of petition for PCR). Because Arizona's procedural rules preclude Petitioner from returning to state court to exhaust these claims for relief in a Rule 32 proceeding this Court finds that the grounds for relief alleged in the Petition are technically exhausted but procedurally defaulted. In his reply, Petitioner urges that his claims are not procedurally defaulted. (Doc. 9). He claims that he has invoked one complete round of the state's established appellate review as to his claims alleged in the Petition. (Doc. 9 at 5). Again, while Petitioner filed a direct appeal, a PCR petition and a petition for review of the trial court's denial of his PCR petition, he did not present any of the claims alleged in his Petition to the trial court or the Arizona Court of Appeals in these filings.
Petitioner urges that he presented his “invited error” claim in a Writ of Error to Cross Appeal on July 27, 2022 and thus this claim is exhausted. (Doc. 9 at 10). He also claims that he filed a “Motion of Objection” on August 22, 2022. Id. He also urges that his “illegal sentences” claim was raised in a PCR petition in his “collateral attack motion filed 9/1/22...” Id. Petitioner filed each of these motions pro per when he was represented by counsel. In a ruling dated August 18, 2022, the trial court ruling advised Petitioner that the court would take no action on his Motion to Appeal/Notify Double Jeopardy Sentence unless his counsel filed a separate motion. (Doc. 9-2 at 58). Petitioner has presented no evidence that counsel filed such a separate motion and that such motion was properly considered by the trial court. On September 19, 2022, the trial court again advised Petitioner that it would “not hear or rule on the Defendant's pro per motions while he is represented by counsel.” (Doc. 9-2 at 29). Petitioner has presented no evidence that counsel filed any of his mentioned pro per motions or that such motions were properly considered by the trial court. On November 7, 2022, the court of appeals issued an order denying his “Motion of Response to Order Filed September 29. 2022 to File PR” for failure to comply with its order dated September 29, 2022. (Doc. 9-5 at 6). See also Doc. 9-2 at 14 (November 23, 2022 court of appeals order recognizing that Petitioner continues to be represented by counsel in the PCR proceeding dismissed by the trial court on July 14, 2022).
Petitioner's efforts to exhaust the claims alleged in the Petition through the above mentioned pro per motions were unsuccessful. As mentioned above, Petitioner's claims must have been presented to the state court in a procedurally appropriate manner. This Court finds that none of Petitioner's claims alleged in the Petition were presented to the state court in a procedurally appropriate manner.
Excuse of Procedural Default
A federal habeas court may review the merits of a procedurally defaulted claim only if the petitioner alleges and proves either “cause and prejudice” or a fundamental miscarriage of justice by establishing his actual innocence. Coleman, 501 U.S. at 750. To establish “cause,” a petitioner must demonstrate that “some objective factor external to the defense impeded [petitioner]'s efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “Prejudice” requires a showing that the alleged constitutional violation worked to the prisoner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis deleted); see also Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989). To establish a “fundamental miscarriage of justice,” a petitioner must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual innocence means factual innocence, not legal insufficiency of the evidence. Bousley v. United States, 523 U.S. 614, 623-24 (1998); see also United States v. Ratigan, 351 F.3d 957, 965 (9th Cir. 2003).
Petitioner does not claim actual innocence. (Doc. 1, 9). Petitioner has failed to present anything from which this Court could find that cause and prejudice exist such that the district court may excuse the procedural default of his claims. Indeed, Petitioner insists that his claims are exhausted. (Doc. 9). As explained above, this Court finds that the claims alleged in the Petition are procedurally defaulted. This Court also finds that the default is without excuse.
Recommendation
Accordingly, for the reasons set forth above, this Court finds that the claim raised ground two of the Petition is non-cognizable on habeas review. This Court also finds that the claims raised in all three grounds for relief alleged in the Petition are procedurally defaulted without excuse and barred from habeas review. Accordingly, this Court RECOMMENDS that the district court, after an independent review of the record, DISMISS the Petition (Doc. 1).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-23-172-TUC-JGZ. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).