Opinion
CV-22-01613-PHX-GMS (ESW)
07-12-2023
Kevin M. Taubman, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Kevin M. Taubman's (“Petitioner”) Petition for a Writ of Habeas Corpus (the “Petition”) (Doc. 1). After reviewing the parties' briefing (Docs. 1, 10, 14, 18), it is recommended that the Court deny habeas relief without holding an evidentiary hearing.
I. BACKGROUND
In September 2013, a jury sitting in the Superior Court of Arizona in and for Maricopa County convicted Petitioner of two counts of first degree murder and eighteen other felony offenses related to three home invasions. (Doc. 10-1 at 5, 27). On December 19, 2013, the trial court sentenced Petitioner to natural life prison terms on the murder convictions and aggravated prison terms on the remaining convictions. (Doc. 1 at 4-6).
On June 2, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences except for the sentence on Count 19 (attempted theft of means of transportation), which the Arizona Court of Appeals vacated and remanded for resentencing. (Doc. 10-1 at 20). On remand, the trial court sentenced Petitioner to an aggravated term of 7.5 years' imprisonment on Count 19. (Id. at 159). On June 15, 2017, the Arizona Court of Appeals affirmed the sentence. (Id. at 158-60). Petitioner did not seek further review by the Arizona Supreme Court.
In March 2019, Petitioner filed a Petition for Post-Conviction Relief (“PCR”). (Doc. 10-2 at 3-31). The trial court summarily denied the PCR Petition in April 2020. (Id. at 81-82). Petitioner moved for a rehearing, which the trial court denied. (Id. at 96). On February 11, 2021, the Arizona Court of Appeals affirmed the trial court's denial of the PCR Petition. (Id. at 147-48). The Arizona Supreme Court denied Petitioner's request for further review on September 22, 2021. (Id. at 146).
On September 22, 2022, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). In its Screening Order (Doc. 4), the Court ordered Respondents to answer the Petition. As detailed in the Screening Order, “Petitioner raises two grounds for relief. In Ground One, Petitioner asserts that his Fourteenth Amendment right to due process was violated because the trial court failed to declare a mistrial, despite the court's observation that Petitioner's counsel was incompetent and ineffective. In Ground Two, Petitioner contends his counsel was ineffective.” (Id. at 1-2).
Respondents filed an Answer (Doc. 10) on November 29, 2022. Petitioner filed a Memorandum of Law (Doc. 14)in support of the Petition in February 2023 and filed a Reply (Doc. 18) on April 14, 2023. The following discussion explains the undersigned's conclusions that (i) Ground One is procedurally defaulted and without merit and (ii) Ground Two also is without merit.
The Petition explained that the Memorandum was “in the process of being copied and sent for filing with the Court” and would be filed upon completion of the copying. (Doc. 1 at 26).
II. LEGAL STANDARDS
A. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. ”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
B. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).
C. Reviewing the Merits of a Habeas Claim
In reviewing a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “The ‘unreasonable application' clause of § 2254(d)(1) applies when the ‘state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Hollandv. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)[.]”).
III. DISCUSSION
A. Ground One is Procedurally Defaulted and Without Merit
In Ground One of the Petition, Petitioner alleges a violation of his Fourteenth Amendment right to due process of law. Petitioner asserts that “although the [trial court] observed that appellant's lawyer was incompetent and ineffective throughout the trial, the court's failure to declare a mistrial deprived appellant of his constitutional right to due process and a fair trial.” (Doc. 1 at 9-10) (capitalization omitted). Petitioner states that his trial counsel moved for a mistrial “and accused the court of disliking [trial counsel] to the point that it was ‘spilling over' to Petitioner.” (Id. at 14). The trial court denied the request for a mistrial. (Id.).
In his opening brief on direct appeal, Petitioner argued that the trial court “was aware that [Petitioner] was not being competently represented in violation of his due process rights, and as a ‘functionary] of justice,' it was error not to declare a mistrial in order to appoint new counsel.” (Doc. 10-1 at 61) (quoting State v. Bible, 858 P.2d 1152, 1198 (1993)). In rejecting the claim, the Arizona Court of Appeals stated that Petitioner “cites no authority supporting this argument.” (Id. at 16). The Arizona Court of Appeals further stated that although the trial court has discretion to replace defense counsel when confronted with deficient performance, “the trial court should not be making ineffective assistance of counsel determinations during the trial[.]” (Id.) (citing State example rel. Thomas v. Rayes, 153 P.3d 1040, 1044 (2007)). The Arizona Court of Appeals concluded by explaining that ineffective assistance of counsel claims are not cognizable on direct appeal and it therefore “will not address [Petitioner's] ineffective assistance of counsel claim.” (Id. at 17).
1. Ground One is Unexhausted and Procedurally Defaulted
In presenting Ground One to the Arizona Court of Appeals, Petitioner did not reference the due process clause of the Fourteenth Amendment of the United States Constitution. (Doc. 10-1 at 50-61).
To reiterate, a claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”). A “general appeal to a constitutional guarantee,” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”); Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”).
The undersigned finds that Ground One is unexhausted. A habeas claim “is procedurally defaulted if it has not been exhausted in state court and would now be barred under state procedural rules.” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008). If Petitioner returned to state court and presented Ground One in a second PCR Petition, the PCR Petition would be untimely and successive under adequate and independent state procedural rules. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a), 32.2(b), 32.4, 32.16(a)(1). A state post-conviction action is futile where it is time-barred. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997).
Because adequate and independent state rules would preclude Petitioner from returning to state court to exhaust Ground One, the undersigned finds that Ground One is procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1)).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
2. Petitioner's Procedural Default is Not Excused
A petitioner may overcome a procedural default by proving one of two exceptions. In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327). The miscarriage of justice exception is also referred to as the “Schlup gateway.” Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003).
Petitioner's status as a pro se litigant does not exempt Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause).
The undersigned finds that Petitioner has failed to establish that his procedural default is “due to an external objective factor that cannot fairly be attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural default. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural default.
To the extent that Petitioner may assert the Schlup gateway, Petitioner has not proffered any new reliable evidence to support actual innocence. The undersigned recommends that the Court find that Petitioner cannot pass through the Schlup gateway to excuse his procedural default. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324). The undersigned recommends that the Court dismiss Ground One with prejudice.
3. Ground One May Alternatively be Denied on the Merits
“If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). The Supreme Court has “repeatedly pointed out [that] circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court. . . . Nor, of course, do state-court decisions, treatises, or law review articles.” Kernan v. Cuero, 138 S.Ct. 4, 9 (2017) (internal quotation marks and citation omitted). In addition, the Supreme Court has “emphasized, time and again, that the [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is ‘clearly established.'” Lopez v. Smith, 574 U.S. 1, 2 (2014). Further, circuit precedent “cannot ‘refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the] Court has not announced.'” Id. at 7 (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
Petitioner has not identified any clearly established Supreme Court precedent regarding a trial court's denial of a request to declare a mistrial or failure to sua sponte declare a mistrial. Petitioner has failed to show that the Arizona Court of Appeals' rejection of Ground One is contrary to, or an unreasonable application of, clearly established law or is based on an unreasonable determination of the facts. Therefore, it is alternatively recommended that the Court deny Ground One on the merits. See McCullough v. Dir., TDCJ-CID, No. 6:10CV292, 2011 WL 147692, at *3 (E.D. Tex. Jan. 18, 2011) (concluding that even if the failure to declare a mistrial sua sponte violated state law, “this is not by itself enough to show entitlement to federal habeas corpus relief' and finding habeas claim without merit as the petitioner “has not shown that the trial court's failure to declare a mistrial sua sponte violated his federal constitutional rights”); Herrington v. Lazaroff, No. 5:12 CV 01005, 2015 WL 3687681, at *28 (N.D. Ohio June 11, 2015) (habeas claims premised on the trial court not sua sponte declaring a mistrial were without merit as the petitioner had not shown that the state court's determination was contrary to or an unreasonable application of clearly established federal law); Burgos v. Sexton, No. 17-CV-06102-WHO, 2019 WL 1598221, at *12 (N.D. Cal. Apr. 15, 2019) (denying habeas relief where petitioner “has not identified clearly established federal law to show that a court is constitutionally required, under any circumstances, to grant a mistrial”).
B. Ground Two is Without Merit
1. Analyzing the Merits of Habeas Claims Alleging the Ineffective Assistance of Counsel
The “clearly established federal law” for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In assessing the performance factor of Strickland's two-part test, judicial review “must be highly deferential” and the court must try not “to second-guess counsel's assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In other words, it must be shown that the “likelihood of a different result [is] substantial, not just conceivable.” Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
Finally, on federal habeas review, the “pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Richter, 131 S.Ct. at 785. And “it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curium). “Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted).
2. Analysis
Ground Two of the Petition alleges: “Violation of Petitioner's 14th Amendment Right to Due Process of Law By Ineffective Assistance of Counsel at the Pretrial and Trial Stages of the Criminal Prosecution.” (Doc. 1 at 16). Petitioner asserts that a “significant number of important interactions between defense counsel and the trial judge demonstrate ineffective assistance of counsel by a series of incidents over the course of the trial[.]” (Id. at 19). Petitioner then describes these purported “incidents” in a vague and cursory manner. For example, Section 12.B.1.6(a) of the Petition states only: “R.T. 09/10/2013, at page 92: (counsel arguing with the Court in front of the jury over an objection made by the State against him)[.]” (Id.). Section 12.B.1.6(e) references the September 11, 2013 trial transcript and states only “Court issuing curt denial when transcript of the day's testimony was requested.” (Id. at 20). In a footnote, the Petition states that the “referenced series of incidents are not wholly one-sided and may be interpreted as supporting either prejudicial conduct (ineffective assistance) of counsel or prejudicial judicial treatment of defense counsel, or both.” (Id. at 25 n. 5).
Respondents identify and enumerate the following three sub-claims in Ground Two alleging the ineffective assistance of counsel: (i) Ground 2(a): “counsel's objections being overruled and counsel being repeatedly admonished by the trial court”; (ii) Ground 2(b): “counsel's failure to notice a causation defense and an expert who would speak to that defense”; and (iii) Ground 2(c) “counsel incorrectly advising [Petitioner] to testify in his own defense, which resulted in the admission of other-acts evidence.” (Doc. 10 at 2).Respondents do not raise any affirmative defense with respect to those claims. In his Reply, Petitioner asserts that
Respondents also liberally construe Ground One as potentially raising these same claims. (Doc. 10 at 2).
given the sixteen (16) instances of trial counsel's misconduct and disrespect toward the court; counsel's failure to failure to notice a causation defense; failure to obtain an expert who could speak to that defense; and counsel incorrectly advising [Petitioner] to testify in his own defense-which resulted in the admission of damaging other-acts evidence; prejudice was demonstrated and calls for habeas relief in the form of an order setting aside the convictions and sentences and returning the case to the state court system.(Doc. 18 at 2). Petitioner's characterization of his claims in Ground Two is largely consistent with Respondents' characterization. The undersigned will discuss Petitioner's ineffective assistance of counsel claims in three subsections, labeled Grounds 2(a)-(c). As discussed below, they are all without merit.
To the extent Petitioner raises other ineffective assistance of counsel claims in the Petition that are not identified above as Grounds 2(a)-(c), the undersigned finds that the claims should be summarily dismissed as the claims are vague and conclusory. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (vague or conclusory claims without supporting factual allegations warrant summary dismissal of § 2255 motion); see also Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“It is well-settled that ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'”) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). To plead a cognizable federal habeas claim, a petitioner must set forth in his or her petition the facts supporting the specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. “‘[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of constitutional error.'” Advisory Committee Note to Rule 4, foll. 28 U.S.C. § 2254 (citation and internal quotation marks omitted); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254 habeas petitions is “more demanding” than the notice pleading allowed under Fed.R.Civ.P. 8); Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (concluding that a habeas petitioner “failed to satisfy the specificity requirement of § 2254 pleadings or to show that there is a ‘real possibility' of constitutional error” by “merely alleg[ing] that he ‘ . . . was not informed of the consequences of his plea. . . .'”) (citing Rule 2(c), 28 U.S.C. foll. § 2254).
i. Ground 2(a)
To the extent that the PCR Petition may be construed as presenting the claim in Ground 2(a) that Petitioner's trial counsel was ineffective based on “counsel's objections being overruled and counsel being repeatedly admonished by the trial court,”the trial court's decision dismissing the PCR Petition does not expressly discuss that claim. However, “the Supreme Court squarely held in Harrington v. Richter that a state court decision need not address every argument, nor even explain its reasoning, to be entitled to AEDPA deference as to its ruling on a federal constitutional claim.” Lee v. Comm'r, Alabama Dep't of Corr., 726 F.3d 1172, 1211 (11th Cir. 2013) (citing Richter, 131 S.Ct. at 784-85); see also Smith v. Sec'y, Dep't of Corr., 572 F.3d 1327, 1333 (11th Cir. 2009) (“In order to merit AEDPA deference the state court need not expressly identify the relevant Supreme Court precedent, nor make a perfect statement of the applicable rule of law, nor provide a detailed opinion covering each aspect of the petitioner's argument.”).
Ground 2(a) is arguably subject to summary dismissal as it is vague and conclusory.
Instead, the “focus on the ‘unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.” Gill v. Mecusker, 633 F.3d 1272, 1290 (11th Cir. 2011); Greene v. Upton, 644 F.3d 1145, 1155-56 (11th Cir. 2011) (emphasizing in a § 2254 capital case that “Batson does not require elaborate factual findings” and applying AEDPA deference to a state court's Batson ruling even though it did not address every argument or make an explicit fact finding on Batson 's third step); Blankenship v. Hall, 542 F.3d 1253, 1271-72 (11th Cir. 2008) (stating in a § 2254 capital case that “implicit findings” may be inferred from a state court opinion and record and “these implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact”); Darty v. Soto, No. 2-13-CV-02572-TLN-AC-P, 2016 WL 891475, at *18 (E.D. Cal. Mar. 9, 2016) (“State courts are not required to address every argument made by a petitioner[.]”). On habeas review under § 2254(d), the “focus is on the state court's decision or resolution of the case.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) (emphasis in original).
As Respondents note, Petitioner has not sufficiently explained how the alleged instances of trial counsel's misconduct prejudiced him. (Doc. 10 at 15). A federal habeas petitioner “must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the statecourt decision applied Strickland incorrectly. . . . Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 698-699 (2002). The undersigned finds that Petitioner has failed to show that the state courts' rejection of the above ineffective assistance of counsel claim is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground 2(a).
ii. Ground 2(b)
Petitioner's convictions for first degree murder arose from the deaths of an elderly couple who were tied up during the burglary of their home, suffered heart attacks, and subsequently died from their injuries. During trial, the State called Dr. Cheryl Maurice as a witness, who was the physician for one of the deceased victims. In his Petition, Petitioner recounts that the trial court limited the cross-examination of Dr. Maurice by Petitioner's counsel because defense counsel failed to notice Dr. Maurice as an expert. (Doc. 1 at 12-13). In Ground 2(b), Petitioner asserts that with Dr. Maurice as a witness,
defense counsel potentially could have raised a causation defense to the felony murder charge because the victim had other serious medical ailments that may have lead to her demise other than from the trauma that occurred at the home invasion. Because counsel failed to notice the causation defense and failed to notice the witness as an expert, the Court precluded counsel's cross-examination on this issue.(Id. at 22 n.4; see also Doc. 1 at 12-13, 16-18).
In rejecting the claim presented in Ground 2(b), the trial court first recounted that the “two murder counts arose because two of the victims who were left tied overnight suffered heart attacks that led to each of their deaths.” (Doc. 10-2 at 81). The trial court then stated: “Defendant's petition makes no proffer that Dr. Maurice could have provided any evidence that there was any supervening act that would have broken the proximity between Defendant's acts and the heart attacks that eventually resulted in the women's deaths.” (Doc. 10-2 at 82). The trial court found that “both as a matter of fact and a matter of law no ineffective assistance of counsel based upon a claim that by counsel's fail[ure] to use Dr. Maurice to support a causation defense for the two deceased victims.” (Id.). The Arizona Court of Appeals affirmed the trial court's ruling. (Id. at 147-48).
Respondents correctly assert in their Answer (Doc. 10 at 16) that Petitioner's speculative allegations with respect to Ground 2(b) are insufficient to warrant habeas relief. See Atwood v. Ryan, 870 F.3d 1033, 1064 (9th Cir. 2017) (“An argument that counsel could have relied on ‘any number of hypothetical experts . . . whose insight might possibly have been useful' is speculative and insufficient to establish that counsel was deficient.”) (quoting Richter, 562 U.S. at 107)); Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (petitioner did not show his trial counsel was ineffective in failing to call an arson expert when petitioner “offered no evidence that an arson expert would have testified on his behalf at trial. He merely speculates that such an expert could be found. Such speculation, however, is insufficient to establish prejudice.”); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Speculation about what an expert could have said is not enough to establish prejudice.”).
The undersigned finds that Petitioner has failed to show that the state courts' rejection of the ineffective assistance of counsel claim in Ground 2(b) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground 2(b).
iii. Ground 2(c)
As explained in the Petition, Petitioner testified at trial. (Doc. 1 at 15-16). The Petition states that Petitioner's “trial testimony was awful. He admitted that he could have committed the acts that his co-defendant described, and said that he did not know because he was on a crack binge when the events occurred.” (Id. at 15). Ground 2(c) asserts that Petitioner's trial counsel was constitutionally ineffective with respect to Petitioner's decision to testify at trial. In its April 2020 ruling, the trial court stated:
It is apparent that Defendant expressed his intent to testify early because of the extensive pre-trial hearing conducted in Defendant's presence regarding the scope of crossexamination should Defendant choose to testify. Defense counsel argued that the court should follow the Federal Rules policy of limited, rebuttal scope cross-examination and not follow Arizona's policy of open cross-examination. The court ruled in Defendant's presence, and in fact, to Defendant directly, that cross-examination would be open and that
specific 404 acts would be admissible if Defendant chose to testify.
Defendant chose to testify. Not surprisingly, Defendant's 404 acts were also admitted.(Doc. 10-2 at 83). The trial court explained that “the law provides a defendant with the unfettered discretion to decide whether to testify in their trial or not.” (Id.) (citing State v. Lee, 142 Ariz. 201, 215 (1984). The trial court concluded that “regardless of the advice trial counsel gave Defendant regarding the risks of testifying, the decision to testify was exclusively Defendant's. Regardless of the risks trial counsel advised Defendant stemming from testifying, the trial court directly advised Defendant of his exposure to the admission of specified 404 acts should he choose to testify.” (Id.). The trial court found “both as a matter of fact and a matter of law no ineffective assistance of counsel based upon a claim that Defendant was inadequately counseled on the danger of testifying.” (Id.).
Respondents accurately observe that “[a]s in his post-conviction proceedings, [Petitioner] does not avow that he was in some way pressured to testify.” (Doc. 10 at 17). The record reflects that both the trial court and defense counsel made Petitioner aware that other-acts (Rule 404(b)) evidence would be admissible if Petitioner presented any defenses of character. On August 16, 2013, prior to trial, the trial court stated
So these are tough calls, Counsel, and I'm trying to, on one hand, allow you to defend your client, try to force the State to prove the case with the evidence it has on this charge with the evidence on this charge beyond a reasonable doubt. But if you offer defenses of character or, “I didn't do it,” or, “Someone else did it,” that's exactly what [Arizona Rule of Evidence] 404(b) is for.
And I'm more speaking to your client than to you because you're a very good, talented lawyer and you know this stuff. Obviously, you're the one that has to go talk to him in the jail, so I'm trying to tell your client exactly where it's coming from.(Doc. 10-3 at 37). On September 5, 2013, the trial court granted defense counsel's request to “make a record for [Petitioner's] benefit” concerning the Rule 404(b) evidence.Defense counsel stated:
In light of the Court's ruling, we call it 404(b), [in] lawyers speak, but in reality, that's the Court's ruling that, potentially, in certain circumstances, such as you testify or I present, even in opening statements, any type of a defense, a defense meaning or claiming that we're innocent, that there is an explanation for these accusations that don't result in culpability on our part, if I do that, those 404(b) things, the other cases that are not related to this, wherein, the victim came in and testified about struggling with a shotgun. That type of information comes in.
That is a problem because we have problems with this case, and that would be something additional to explain at some point.
When I give my opening statement, I could only go one of two directions. I can do the holding the State to what's called its proof, in other words, making sure they dot all their I's and cross all those T's, that would keep out the 404(b) pursuant to the Court's ruling, 404(b) being what I just described, the other bad acts alleged, or we fight.(Doc. 10-3 at 51-52). Defense counsel then asked Petitioner: “My understanding is that you want me, at this point, to fight; is that correct?” (Id. at 52). Petitioner responded “That's correct.” (Id.). During trial on September 9, 2013, but outside the presence of the jury, the trial court granted defense counsel's request to “make a statement for the record[.]” (Doc. 10-3 at 81). Defense counsel asked Petitioner “Do you agree, as our strategy, we are fully aware [that] the 404(b) evidence is now fair game in coming; you agree to this?” (Id. at 82). Petitioner replied “Yes.” (Id.).
The parties and trial court were in the process of empaneling a jury on September 5, 2013. The prospective jurors were not present when defense counsel requested to make a record.
The undersigned finds that Petitioner has failed to show that the state courts' rejection of the ineffective assistance of counsel claim in Ground 2(c) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground 2(c).
IV. EVIDENTIARY HEARING
Petitioner requests that the Court conduct an “evidentiary hearing to determine the facts underlying his claims of federal constitutional violations.” (Doc. 18 at 5). AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court (i) dismiss with prejudice Ground One of the Petition (Doc. 1) and (ii) deny Ground Two of the Petition (Doc. 1).
As explained in Section III(A)(3), the undersigned alternatively recommends that Ground One be denied on the merits.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Amended Petition is justified by a plain procedural bar and the undersigned finds that jurists of reason would not find it debatable whether the Court was correct in its procedural ruling.
“When the district court denies a habeas petition onprocedural grounds without reaching the prisoner's underlying constitutional claim, a [Certificate of Appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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 Fed. R. App. P. 4(a)(1) 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 & Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.