Opinion
CV-22-01262-PHX-SRB (ASB)
07-14-2023
Tilfert Darrell Vaughn, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge.
Petitioner Tilfert Darrell Vaughn (“Petitioner”), who is confined in the Arizona State Prison Complex - Eyman, Cook Unit, in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. 1.) On June 5, 2023, Petitioner filed a Motion to Amend Petition for Writ of Habeas Corpus. (Doc. 24.) For the reasons that follow, the Court recommends that the Motion be denied and the Petition be 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-22-01262-PHX-SRB (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).
On the night of November 4-5, 2014, girlfriends K.T. and C.S. held a party at their Phoenix apartment, and later, they walked to a nearby bar, where they remained until closing. As they returned to their apartment, C.S., who was visibly intoxicated, stumbled, fell, and vomited, and she did so again at the apartment before the women fell asleep together.
In the early morning, K.T. awoke and saw the bathroom light on. She got up to shut off the light, but a naked man holding a large knife confronted her. The man ordered K.T. to return to bed, placed the knife against her throat, and sexually assaulted her. During the assault, C.S. awoke, tried to push the man off K.T., and suffered lacerations to several fingers on her left hand from the knife. C.S. clutched her hand to her chest, began crying, and curled up in the fetal position, while K.T. tried to calm her as the sexual assault continued. The man eventually got up, went to the bathroom, and dressed, while warning the women not to move. When they believed the man had left, the women called 911.
A Phoenix police officer who arrived at the victims' apartment observed C.S. crying hysterically and screaming, “[h]e's got my keys, he's going to come back.” K.T. provided a description of the attacker and reported numerous items missing from the apartment, including C.S.'s keys. Many of the missing items were later found in a nearby vacant apartment, in which detectives also found a wine bottle and a cigarette butt. K.T. underwent a forensic examination, which indicated injury to her cervix.
Detectives obtained and reviewed surveillance video of that night from the apartment complex, the bar, and a nearby convenience store. They established a man as a person of interest after video reflected his presence at the convenience store, then near the victims as they left the bar, then entering the victims' apartment complex as they entered, then later smoking a cigarette at the complex. After appearing on the apartment surveillance video several times within an hour, the man did not reappear on the video for approximately two hours - when he exited the apartment complex and walked away at the same time the victims called 911. After the media broadcast the man's image, a caller identified the man as [Petitioner].
Detectives interviewed [Petitioner], who confirmed he was the man shown in the video. [Petitioner] claimed to lack memory of most of that night's events, but remembered being kicked off a city bus later that morning at a different location. Officers collected [Petitioner's] DNA and confirmed through forensic testing that it matched DNA taken from K.T.'s vagina during her forensic examination, with the probability of an unrelated individual having a DNA profile matching that DNA profile at 1 in 990 quintillion. [Petitioner's] DNA also matched DNA samples taken from the wine bottle and cigarette butt found in the vacant apartment.
After a twenty-one-day trial, the jury found [Petitioner] guilty as charged, and found the State had proven three aggravating factors for each charge. After finding [Petitioner] had at least two historical prior felony convictions, the trial court sentenced him to a combination of concurrent and consecutive maximum and aggravated sentences totaling fifty-six years' imprisonment in [Arizona Department of Corrections], and credited him for 706 days of presentence incarceration.(Doc. 11-2, Exh. OO, at 2-3.)
B. Direct Appeal
Petitioner filed a direct appeal and presented three issues in his opening brief:
I. Whether the Trial Court Committed Reversible Error when Admitting the 911 Call as an Excited Utterance under the Exception to the Hearsay Rule
II. Whether the Trial Court Committed Reversible Error when Precluding the Defense from Introducing Evidence that the Victims Met and Served Time in the Department of Corrections
III. Whether the Trial Court Committed Reversible Error when Admitting Evidence the Defendant was Kicked off a City Bus 1.5 Miles from the Scene, Forty-Five Minutes Later(Doc. 11-2, Exh. MM, at 2.) In a Memorandum Decision filed January 25, 2018, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 11-2, Exh. OO, at 10.) Petitioner's motion for reconsideration was denied and he sought no review from the Arizona Supreme Court. (Doc. 11-2, Exh. OO.) The Mandate issued on March 26, 2018. (Id.)
C. Post-Conviction Relief Proceedings
On February 21, 2018, Petitioner timely filed a pro se Notice of Post-Conviction Relief (“PCR”) under Rule 32 of the Arizona Rules of Criminal Procedure and a Request for Appointment of Counsel. (Doc. 11-2, Exh. PP.) On November 25, 2019, Petitioner, through counsel, filed a Petition for Post-Conviction Relief in which he raised four claims of ineffective assistance of trial counsel, and one claim arguing his right to post-conviction deoxyribonucleic acid (“DNA”) testing. (Doc. 11-3, Exh. QQ, at 1-2.) On September 21, 2020, the PCR court denied and summarily dismissed the Petition for Post-Conviction Relief and denied the request for DNA testing pursuant to Rule 32.12 of the Arizona Rules of Criminal Procedure, finding the “[Petitioner] failed to state a colorable claim.” (Doc. 11-6, Exh. TT.)
Through counsel, Petitioner filed a Petition for Review in the Arizona Court of Appeals on December 31, 2020. (Doc. 11-6, Exh. UU.) On July 29, 2021, the Arizona Court of Appeals granted review but denied relief, finding the “petitioner [did] not establish[] an abuse of discretion.” (Doc. 11-6, Exh. XX.) Petitioner did not file a motion for reconsideration and did not seek review by the Arizona Supreme Court. (Id.) The Mandate issued on September 13, 2021. (Id.)
II. Federal Proceedings
A. Petitioner's Habeas Petition
On July 28, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In his Petition, Petitioner asserts:
GROUND ONE: The trial court committed reversible error when it “admitted the 911 call as an excited utterance under an exception to the hearsay rule because its prejudicial effect outweighed its probative value and served to prejudice the minds of the jury or deny Petitioner a right to a fundamentally fair trial” in violation of the Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions.
GROUND TWO: The trial court committed reversible error when it “precluded defense from introducing evidence that the victims met and served time in the Arizona Department of Corrections that prejudiced [Petitioner] or served to deprive him of a right to fundamental fairness during trial proceedings”
in violation of the Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions.
GROUND THREE: The trial court committed reversible error when it “admitted evidence that [Petitioner] was kicked off a city bus 1.5 miles from the scene, 45 minutes later because its probative value was outweighed by unfair prejudice and irrelevance denied him fair process” in violation of the Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions.
GROUND FOUR: Petitioner was deprived of the right to effective assistance of trial counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the Arizona and United States Constitutions, when Petitioner's trial counsel: (a) failed to impeach Victim C.S. with her prior felony conviction; (b) failed to present photographs taken by police that supported Petitioner's testimony; (c) failed to ask for a trial continuance when unable to serve Orlando Nieves and have him appear as a trial witness; and (d) failed to request a Willits instruction regarding video from Wild Bill's Saloon after the State failed to preserve video evidence from the evening of the offense.
GROUND FIVE: The trial court abused its discretion when it summarily dismissed Petitioner's initial-of-right postconviction relief petition and denied his request for postconviction DNA testing, in violation of the Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions.(Doc. 1.)
Arizona v. Willits, 393 P.2d 274 (Ariz. 1964).
In response, Respondents argue: (1) Grounds One, Two, Three, and Five are not cognizable federal claims because Petitioner failed to argue a violation of federal law, (2) Grounds One, Two, Three, and Five are procedurally defaulted because Petitioner failed to raise the specific federal claim to the state courts, and (3) Grounds Four(a)-(d) are meritless. (Doc. 11.) Petitioner filed a Reply maintaining the contrary. (Doc. 17.)
B. Petitioner's Motion to Amend Habeas Petition
On June 5, 2023, Petitioner filed a Motion to Amend Petition for Writ of Habeas Corpus (“Motion”). (Doc. 24.) On June 19, 2023, Respondents responded in opposition. (Doc. 26.) Petitioner did not file a Reply and the time to do so has passed. The Court will address the Motion to Amend before considering the habeas Petition.
ANALYSIS: MOTION TO AMEND PETITION
I. Applicable Law
A petition for writ of habeas corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. § 2244. The Court looks to Rule 15 of the Federal Rules of Civil Procedure to address a party's motion to amend a pleading in a habeas corpus action. See James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001). Rule 15(a) provides that a party may amend its pleading once as a matter of course no later than twenty-one days after serving it or twenty-one days after service of a responsive pleading. Fed.R.Civ.P. 15(a). Where the deadline to amend as a matter of course has expired, as here, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Id. The Court may deny leave to amend if it finds undue delay, bad faith or dilatory motive, futility of amendment, prejudice to the opposing party, or that the petitioner has previously amended their pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); Bonin v. Calderon, 59 F.3d 815, 844-55 (9th Cir. 1995) (applying Rule 15(a) in a habeas case). However, “each is not given equal weight.” Bonin, 59 F.3d at 845. The Court may properly deny leave to amend based solely upon the futility of the proposed amendment. Id.
Futility can occur when a petitioner has failed to exhaust his state remedies on the amended claim, when the claim is tenuous, or when it is untimely. See Caswell v. Calderon, 363 F.3d 832, 837-38 (9th Cir. 2004) (finding a proposed amended claim futile when the claim was unexhausted in state court and tenuous); Mayle v. Felix, 545 U.S. 644 (2005) (finding an amended claim as untimely when it did not share a common core of operative facts with the original petition). With regard to an untimely amendment, the AEDPA provides: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). However, an amendment made after the period of limitation has run “relates back” to the date of the original pleading when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence” in the original pleading. Fed.R.Civ.P. 15(c). The Supreme Court in Mayle rejected the theory that the same “conduct, transaction, or occurrence” means the same “trial, conviction, or sentence.” 545 U.S. at 664 (holding “[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.”).
II. The Parties' Arguments
Petitioner is seeking leave to amend his habeas Petition to include a fifth ineffective assistance of counsel claim. (Doc. 24.) Petitioner argues after Respondents filed their Response (Doc. 11) and included “nearly four-thousand (4000) documents as exhibits,” he discovered that his trial counsel did not conduct an adequate and thorough pretrial investigation and did not obtain an investigator “to conduct any pretrial investigation until the trial proceedings had begun.” (Doc. 24 at 2-3.) Specifically, Petitioner argues the exhibits revealed that there were seven individuals who were interviewed by the police that Petitioner's trial counsel failed to contact, interview, or depose. (Id. at 3.) Petitioner asserts trial counsel was ineffective because “in this case[,] credibility of the state's key witnesses was ‘determinative' and failure to interview led to failure to ‘elicit essential impeachment' evidence.” (Id. at 4.)
Respondents argue Petitioner's proposed amendment would be futile as it is: (1) untimely and does not relate back to his original habeas petition claims; (2) procedurally defaulted; and (3) tenuous. (Doc. 26.) In addition, Respondents argue Petitioner unduly delayed seeking to amend his Petition with this claim and failed to provide any compelling explanation for the delay. (Id. at 7.) Respondents assert Petitioner “provides no clear explanation for why this claim could only be discovered now when he was present for all of the court proceedings, including pretrial, trial, direct appeal, and post-conviction relief.” (Id.) Lastly, Respondents argue they would suffer prejudice if Petitioner were allowed to amend and that both the victims and the State have a legitimate interest in finality. (Id. at 8.)
III. Analysis
Although Petitioner has not amended his Petition previously, Petitioner has unduly delayed in moving to amend and his proposed claim is futile. First, Petitioner provides no explanation for the undue delay in filing this Motion. In evaluating undue delay, the Ninth Circuit inquires “whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946 (9th Cir. 2006) (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990)); see also Acri v. Int'l Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986) (holding courts have been unwilling to permit amendment to assert new claims “when the facts and the theory have been known to the party seeking amendment since the inception of the cause of action.”).
Here, the amended claim has been proposed nearly eleven months after Petitioner filed his original pleading. Petitioner asserts that the evidence supporting the amended claim came to light only after Respondents filed their Response, in which voluminous exhibits were attached. However, Respondents filed their Response on September 27, 2022, and Petitioner filed the instant Motion on June 5, 2023, almost nine months later. Petitioner fails to explain why this claim could not have been raised in his original Petition or why it could only now be discovered after reviewing Respondents' exhibits.
While Petitioner asserts he only learned of the facts supporting the amended claim after reviewing Respondents' exhibits, the trial record does not support this assertion. First, Petitioner was present for trial proceedings where the facts and theories supporting this amended claim became known to Petitioner. (See Doc. 11-2, Exh. HH, at 69-70 (Trial counsel asked Petitioner “[y]ou've been present for the entirety of this trial; correct?” Petitioner responded affirmatively. Trial counsel then asked, “you have been present while the State has presented their case; right?” Petitioner again affirmed.).)
Second, during trial, Petitioner demonstrated his familiarity with the police reports when he stated: (1) “[f]rom my recollection and also from the court proceedings and the [police reports] we've been investigating on...,” and (2) “I've been in court.. .and had a chance to hear what the [police reports] and see everything that you said, so I've got to know.exactly what this is all about now.” (Doc. 11-2, Exh. HH, at 37, 52.) Petitioner's familiarity with the reports was further demonstrated when trial counsel asked, “in the past two years since [the] incident occurred, you've had the opportunity to review police reports; right?” and Petitioner responded “yes.” (Id. at 83.)
Previously on cross-examination, Petitioner clarified his reference to “paperwork” was a reference to police reports. (Doc. 11-2, Exh. HH, at 37-38.)
The record shows Petitioner had the chance to review, and hear testimony about, the police reports during trial proceedings. To further evidence this, one of the individuals interviewed by police officers was Orlando Nieves. In his original Petition, Petitioner raised an ineffective assistance claim based on trial counsel's failure to request a continuance when unable to serve Orlando Nieves and have him appear as a witness at trial. (Doc. 1 at 12.) That claim demonstrates Petitioner was aware of individuals interviewed by the police during: (1) pretrial proceedings when trial counsel spent two months attempting to serve Mr. Nieves; (2) trial proceedings when trial counsel asked for a continuance to try and serve the witness; and (3) post-conviction relief proceedings when Petitioner raised the ineffective assistance claim regarding the serving of Mr. Nieves to the state courts.
Absent Petitioner's explanation as to why he was unable to discover or fully develop this proposed ground originally, the Court finds Petitioner unduly delayed in filing this Motion. See Bonin, 59 F.3d at 845 (holding “a district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally.”).
Second, Petitioner's additional ineffective assistance claim is futile as it is unexhausted in state court and is untimely. Petitioner never raised an ineffective assistance of counsel claim in the state courts based on trial counsel's alleged failure to contact, interview, or depose individuals listed in the police reports. Petitioner also failed to raise an ineffective assistance claim in the state courts based on trial counsel's alleged failure to conduct a thorough pretrial investigation. Because this proposed ground has not been presented to the PCR court, nor the Arizona Court of Appeals, Petitioner has failed to give the state courts the “opportunity to pass upon and correct” the alleged violation, as required for purposes of exhaustion. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (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) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (holding claims “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”). As such, this claim is unexhausted and futile. See Caswell, 363 F.3d at 837.
Petitioner's proposed amended claim is also untimely. Although Petitioner timely filed his original habeas Petition (Doc. 1) as required by the AEDPA's 1-year period of limitation, the amended claim is barred unless it “relates back” to the date of the original pleading. See Mayle, 545 U.S. at 655. Petitioner is required to show that both the original and amended petitions state claims that are tied to a common core of operative facts. Id. at 664. Claims share a “common core” if the petitioner “will rely on the same evidence to prove each claim.” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008).
In the instant action, the two claims do not arise out of a common core of operative facts. The facts underlying the original claim alleged trial counsel failed to: (1) impeach C.S. with her prior felony conviction; (2) present photographs taken by the police that supported his testimony; (3) request a continuance when unable to serve Orlando Nieves and have him appear as a witness at trial; and (4) request a Willits instruction regarding video evidence destroyed by the State. (Doc. 1 at 9.) The facts underlying the amended claim are different, alleging trial counsel failed to: (1) conduct an adequate and thorough pretrial investigation by not obtaining an investigator to conduct any pretrial investigations, and (2) contact, interview, or depose seven individuals who were interviewed by the police. (Doc. 24 at 2-3.) The mere assertion of ineffective assistance of counsel claims in an original habeas petition does not support the relation back of other, newly asserted ineffective assistance claims. Schneider v. McDaniel, 674 F.3d 1144, 1151 (9th Cir. 2012).
As evidenced, supra, none of the claims share common facts. See Ross v. Williams, 950 F.3d 1160, 1168 (9th Cir. 2020) (finding a common core of facts between an amended claim and an original claim when they both arose from trial counsel's purported failure to object to a witness's testimony). The core facts underlying the amended claim are different than the core facts underlying the original four ineffective assistance claims. Moreover, the new claim does not clarify, amplify, or expand on any of Petitioner's original ineffective assistance claims, nor will it rely on the same evidence. See Woodward v. Williams, 263 F.3d 1135, 1142 (9th Cir. 2001) (holding if a new claim clarifies or amplifies a claim in the original petition, the new claim may relate back to the date of the original petition and avoid a time bar); see also Boeing Co., 517 F.3d at 1133. Thus, relation back is not appropriate, and the Motion is untimely.
Accordingly, because Petitioner unduly delayed in asserting this proposed ground and because the proposed amendment sought by Petitioner would be futile, it is recommended that Petitioner's Motion to Amend be denied.
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. Ground One
1. Petitioner's Claim
In Ground One, Petitioner contends the trial court committed reversible error when it admitted the 911 call as an excited utterance under the hearsay rule “because its prejudicial effect outweighed its probative value and served to prejudice the minds of the jury or deny Petitioner a right to a fundamentally fair trial.” (Doc. 1 at 6.) He argues “[t]he statements made during the 911 call do not meet the second prong of the exception carved out by Rule 803(2) as the statements were not made ‘soon after' the alleged events.” (Id.)
Petitioner alleges K.T. and C.S. spoke to the 911 operator and were alone together for as long as ten minutes after the alleged event, which gave them the opportunity to collude and fabricate their account to the operator. (Id.) He further argues the statements made to police indicate that “they had a conversation between themselves as to the events and the identity of the alleged perpetrator prior to calling the 911 operator to make a report. The statements were not made, therefore, soon after the alleged events.” (Id.)
Finally, Petitioner contends C.S. did not personally observe all the events of the alleged sexual assault as she had been asleep with her back toward K.T. during the entire incident and was inside a dark room with no light. (Doc. 1 at 6.) Petitioner asserts this hearsay testimony was “highly prejudicial, incriminating, had a clear bearing on the charges against [Petitioner], and likely affected the jury's verdict.” (Id.)
On direct appeal, the Arizona Court of Appeals ruled the trial court acted well within its discretion in admitting the 911 call. (See Doc. 11-2, Exh. OO, at 5-6 (“[The] facts support the conclusion that when C.S. placed the 911 call, she was still suffering from the emotional trauma of the attacks...The record fully supports the conclusion that C.S. personally observed [Petitioner's] sexual assault of K.T. Accordingly, the trial court did not abuse its discretion by admitting the 911 phone call from C.S. as an excited utterance.”).)
2. Standard of Review
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 to the state's “highest” court in a procedurally appropriate manner. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). 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 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 petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases arising in Arizona, claims “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes, 196 F.3d at 1010.
For a claim to be fairly presented, a petitioner must describe both the operative facts and the federal legal theory on which his claims are based. See Baldwin, 541 U.S. at 33; see also Duncan, 513 U.S. at 365-66. A claim is not fairly presented to the state court if that court “must read beyond a petition or a brief.. .that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Full and fair presentation requires a petitioner to “present the substance of his claim to the state courts, including reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009).
In the Ninth Circuit, the petitioner “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 v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
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). 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. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). 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 omitted). Under this standard, “actual innocence” means “factual innocence, not mere legal insufficiency.” Id.
3. Analysis
Petitioner failed to properly exhaust his Ground One federal habeas claim in the state courts. On direct appeal, Petitioner asserted “[t]he trial court committed reversible error when admitting the 911 call as an excited utterance under an exception to the hearsay rule” and “[a]dmission of the 911 call was erroneous and requires reversal and remand for a new trial.” (Doc. 11-2, Exh. MM, at 10, 13.) Petitioner's direct appeal claim failed to specify a particular provision of the federal Constitution or statutes and failed to cite any federal case law as the basis for his claim, as required. See Insyxiengmay, 403 F.3d at 668. While Petitioner cited to a Seventh Circuit case in clarifying when a fact is considered “otherwise established” (Doc. 11-2, Exh. MM, at 13), the citation was not connected to any federal constitutional claim, but rather was only made in the context of arguing that the evidentiary error was not harmless under state law.
In his Reply, Petitioner argues citing to case law that cited or referenced the Constitution in their analysis satisfies the requirement of expressly specifying the federal basis of his claim to the state court. (Doc. 17.) Petitioner also argues the federal basis of Ground One was evidenced by the Arizona Court of Appeals' citation to federal case law in its Memorandum Decision. (Id.) However, controlling case law does not support this assertion. See Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc) (holding petitioner's citation to state cases analyzing claims under the Sixth and Fourteenth Amendments to the United States Constitution was not enough to satisfy exhaustion because the cases were cited only to support a state-law claim); see also Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir. 2004) (finding for a federal issue to be fairly presented by the citation of a state decision dealing with both state and federal issues, the citation must indicate or signal in the text of the brief that the petitioner is raising a federal claim or relying on state law cases that resolve federal issues).
Furthermore, bolstering a claim with state law cases that focused on state procedural or state constitutional error does not constitute fair presentment of federal constitutional issues. Casey, 386 F.3d at 913; see also Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) (holding petitioner's assertion that the admission of prior act evidence “infringed on his right to present a defense and receive a fair trial” was made in the course of arguing that the evidentiary error was not harmless under state law, and because petitioner never apprised the state court of the federal nature of his claim, fair presentation was not satisfied). In state court, Petitioner limited his arguments exclusively to Arizona evidentiary law. (Doc. 11-2, Exh. MM, at 10-13.) He bolstered his claim with primarily state cases that focused on state procedural error and failed to signal or indicate that the Seventh Circuit case, or the state cases, resolved federal issues and were being used to support a federal constitutional claim, as required to satisfy fair presentment. See Casey, 386 F.3d at 911-13.
Petitioner's argument that the federal basis of the claim was evidenced by the Arizona Court of Appeals' citation to federal case law, similarly fails. For this argument to succeed, the Arizona Court of Appeals must have explicitly ruled on the merits of the federal constitutional issue. See 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); see also Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) (finding petitioner's claim was exhausted for purposes of federal habeas review because the state's supreme court ruled on the merits of his constitutional claim). Here, in contrast, when ruling on the merits of the admission of the 911 call, the Arizona Court of Appeals did not reference, cite, or include any discussion of a federal constitutional issue. (Doc. 112, Exh. OO, at 4-6.) Instead, they relied solely on Arizona Rules of Evidence and Arizona case law in deciding that the trial court did not abuse its discretion by admitting the 911 call. (Id.)
Additionally, Petitioner's direct appeal failed to present a federal constitutional analysis or theory to support his argument. Thus, Petitioner failed to fairly present Ground One as a federal claim in state court. See Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (holding fair presentment of a federal claim in state court requires a petitioner to alert the state courts to the fact that he is asserting a claim under the United States Constitution).
Ground One in the instant Petition alleges a similar claim as in the state court proceedings, but Petitioner now adds language to include the violation of his Fifth, Sixth, or Fourteenth Amendment rights. The above case law requires that Petitioner allege the same claim in the Arizona courts as he raises here. Given the difference in language, and Petitioner's failure to alert the state courts to the federal basis of his claim, Petitioner's direct appeal claim is not the claim he raises here. Thus, Ground One is unexhausted and procedurally defaulted. Additionally, Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage ofjustice will occur absent consideration of the merits.
Moreover, Petitioner's Ground One also fails as it pertains to a state-law evidentiary issue, which is not cognizable on federal habeas corpus review. Pursuant to 28 U.S.C. § 2254(a), this Court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution, laws, or treaties of the United States.” In conducting habeas review, “a federal court is limited to deciding whether a conviction violated [federal law].” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas review. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); see also Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.'”).
Petitioner asserts that admitting the 911 call under Rule 803(2) of the Arizona Rules of Evidence violated his due process by denying him the right to a fair trial. (Doc. 1 at 6.)
However, while Petitioner asserts the admission violated his Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions, as pleaded, this claim remains a state-law evidentiary issue and not a federal one. Petitioner states no other facts to demonstrate a specific violation of his Fifth, Sixth, or Fourteenth Amendment, other than stating the admission denied him the “right to a fundamentally fair trial.” (Id.) Petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process. ” Langford, 110 F.3d at 1389.
Petitioner's claim was decided and dismissed on the merits by the Arizona Court of Appeals on direct appeal and remains a state-law issue in the instant Petition. As such, Petitioner's Ground One is unexhausted, procedurally defaulted, and not cognizable on federal habeas review.
B. Ground Two
1. Petitioner's Claim
In Ground Two, Petitioner contends the trial court committed reversible error when precluding defense from introducing evidence that the victims met and served time in the Arizona Department of Corrections because it “prejudiced [Petitioner] or served to deprive him of a right to a fundamental fairness during trial proceedings in violation of the [Fifth], [Sixth], or [Fourteenth] Amendment of the Arizona and United States Constitution.” (Doc. 1 at 7.) Petitioner argues this evidence would have made it more probable that the two victims had prior knowledge of how the criminal justice system worked. (Id.) He further posits that the witnesses' knowledge caused them to fabricate the events out of fear of being punished for potential domestic violence-related charges. (Id.)
The trial court's ruling on precluding the evidence, Petitioner argues, limited defense counsel's ability to bolster the theory and denied Petitioner the ability to demonstrate the victims' motive to stay out of prison. (Doc. 1 at 7.) Petitioner further argues this evidence would have also bolstered his position that he and K.T. had consensual intercourse. (Id.)
When presented on direct appeal, the Arizona Court of Appeals ruled the trial court did not abuse its discretion in precluding the evidence that the victims met while incarcerated. (See Doc. 11-2, Exh. OO, at 8 (“Evidence the victims met while incarcerated would not, however, make consensual intercourse between [Petitioner] and K.T. any more probable and would have been of de minimis relevance.. .[Petitioner] could present his defense to the jury, and the court did not abuse its discretion in concluding the probative value of evidence the victims met while in prison was substantially outweighed by the danger of unfair prejudice.”).)
2. Standard of Review and Analysis
Petitioner failed to properly exhaust his Ground Two federal habeas claim in the state courts. As stated in the Court's discussion of Ground One, supra, Petitioner must allege the same claim in the Arizona courts as he raises here. See Insyxiengmay, 403 F.3d at 668. In Petitioner's direct appeal, he stated “[t]he trial court committed reversible error when precluding the defense from introducing evidence that the victims met and served time in the Department of Corrections.” (Doc. 11-2, Exh. MM, at 14.) He made one reference to “due process” but failed to articulate on what basis he is relying-whether under the federal Constitution, Arizona constitution, or both. (Id. at 16.) Further, Petitioner's entire argument on direct appeal was based on an application of the Arizona Rules of Evidence. (Id. at 14-16.) In comparison, Ground Two in the instant Petition alleges a deprivation of a “right to fundamental fairness during trial proceedings in violation of the [Fifth], [Sixth], or [Fourteenth] Amendment of the Arizona and United States Constitution.” (Doc. 1 at 7.)
Accordingly, Petitioner's direct appeal claim is not the claim he raises here. Petitioner failed to explicitly specify any provision of the federal Constitution or statutes and cited no federal case law in his direct appeal. Simply mentioning “due process” in Petitioner's direct appeal is not enough to satisfy the standard required. See Shumway, 223 F.3d at 987 (holding petitioner's reference to “due process” was insufficient to fairly present a federal claim, stating “it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.”) (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see also Johnson, 88 F.3d at 830-31.
Further, when Petitioner discussed a violation of “due process,” he cited to state cases dealing with his state-law claim, without giving any indication to the state court that the cases also dealt with federal law and that he was citing them for that purpose. (Doc. 112, Exh. MM, at 14-16.) To further evidence this, the Arizona Court of Appeals analyzed this claim under the Arizona Rules of Evidence and Arizona case law, never addressing or analyzing any federal constitutional issues. (Doc. 11-2, Exh. OO, at 6-8.) Therefore, Petitioner's claim has not been fairly presented to the state courts and is consequently unexhausted and procedurally defaulted. See Casey, 386 F.3d at 911-13. Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits.
In addition, Petitioner's Ground Two fails as it pertains to a state-law evidentiary issue, which is not cognizable on federal habeas corpus review. As recognized, supra, this Court's inquiry in a state prisoner's habeas petition is limited to deciding whether a conviction violated federal law. See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68. Petitioner asserts that precluding the defense from introducing evidence the victims met in the Department of Corrections prejudiced him and deprived him of the right to a fair trial. (Doc. 1 at 7.) However, while Petitioner asserts the preclusion violated his Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions, as pleaded, this claim remains a state-law evidentiary issue and not a federal one. Petitioner states no other facts to demonstrate a specific violation of his Fifth, Sixth, or Fourteenth Amendment other than stating the admission denied him the “right to a fundamental fairness during trial proceedings.” (Id.) Petitioner may not transform a state-law issue into a federal one merely by asserting a violation of due process, as he does here. See Langford, 110 F.3d at 1389.
Petitioner's claim was decided and dismissed on the merits by the Arizona Court of Appeals on direct appeal and remains a state-law issue in the instant Petition. Accordingly, Petitioner's Ground Two is unexhausted, procedurally defaulted, and not cognizable on federal habeas review.
C. Ground Three
1. Petitioner's Claim
In Ground Three, Petitioner asserts the trial court committed reversible error when admitting evidence that he was removed from a city bus 1.5 miles from the scene, forty-five minutes after the crime, because “its probative value was outweighed by unfair prejudice” and “irrelevance denied [Petitioner] fair process.” (Doc. 1 at 8.) He contends this evidence was improper character evidence that only served to bias the jury against him and served no probative value. (Id.) Further, Petitioner agues the trial court's admission of the evidence for the sole purpose of allowing the State to establish identity was error, as his identity was not in dispute. (Id.)
On direct appeal, the Arizona Court of Appeals held the trial court did not abuse its discretion in admitting the evidence. (See Doc. 11-2, Exh. OO, at 10 (“The evidence was relevant for the purpose of proving identity.. .and although [Petitioner] did not contest identity, the State still bore the burden of proving its entire case beyond a reasonable doubt and was entitled to use evidence of its own choice the trial court did not abuse its discretion in admitting evidence that [Petitioner] was kicked off a city bus approximately 1.5 miles from the victims' apartment within one hour after the offenses occurred.”).)
2. Standard of Review and Analysis
Petitioner failed to properly exhaust his Ground Three federal habeas claim in the state courts. As discussed in Grounds One and Two, supra, Petitioner was required to allege the same claim in the Arizona courts as he raises here. In Petitioner's direct appeal, he stated “[t]he trial court committed reversible error when admitting evidence the Defendant was kicked off a city bus 1.5 miles from the scene, 45 minutes later.” (Doc. 11-2, Exh. MM, at 16.) The only contention of resulted harm was “unfair prejudice.” (Id. at 18.) In comparison, Ground Three in the instant Petition alleges a deprivation of “fair process in violation of the [Fifth], [Sixth], or [Fourteenth] Amendment of the Arizona and United States Constitution” as a result of admitting the same evidence. (Doc. 1 at 8.)
Accordingly, Petitioner's direct appeal claim is not the same claim he raises here. Petitioner failed to specify any provision of the federal Constitution or statutes and cited no federal case law in his direct appeal. Simply stating “unfair prejudice resulted from the evidence” in Petitioner's direct appeal is not enough to satisfy the standard requiring explicit reference to the federal basis of the claim. See Insyxiengmay, 403 F.3d at 668. Petitioner contends citing to state case law that cited or referenced the Constitution in their analysis satisfies the requirement of expressly specifying the federal basis of his claim to the state court. (Doc. 17.) He also asserts that the federal basis of Ground Three was evidenced by the Arizona Court of Appeals' citation to federal case law in its Memorandum Decision. (Id.) However, neither of these assertions satisfy Petitioner's requirement to “fairly present” the federal nature of his claim to the state courts. See Peterson, 319 F.3d at 1159; Sandgathe, 314 F.3d at 377-78; Ybarra, 656 F.3d at 991.
On direct appeal, Petitioner cited to Arizona case law and the Arizona Rules of Evidence, but at no point referenced the federal Constitution or its provisions, nor indicated whether the state cases dealt with federal law and that they were being cited for that purpose. Furthermore, considering Petitioner's argument that the Arizona Court of Appeals' citation to federal case law evidenced the federal basis of his claim, the record establishes the appeals court cited to one Supreme Court case in a string citation when discussing why the evidence was relevant for the purpose of establishing identity. (Doc. 11-2, Exh. OO, at 9.) The court referenced Old Chief v. United States, 519 U.S. 172, 189 (1997), among other Arizona case law, in support of the proposition that “the State still bore the burden of proving its entire case beyond a reasonable doubt and was entitled to use evidence of its own choice.” (Doc. 11-2, Exh. OO, at 9.) However, the citation was not used to resolve a question of federal law. (Id.)
As discussed, supra, for Petitioner's argument to succeed, the Arizona Court of Appeals must have explicitly ruled on the merits of the federal constitutional issue. Sandgathe, 314 F.3d at 377-78; Ybarra, 656 F.3d at 991; Arrendondo v. Neven, 763 F.3d 1122, 1139-40 (9th Cir. 2014). The Arizona Court of Appeals' citation to Old Chief does not indicate that the court considered a federal argument. Instead, it relied on Arizona Rules of Evidence and Arizona case law in deciding that the trial court did not abuse its discretion by admitting evidence Petitioner was removed from the city bus. (Doc. 11-2, Exh. OO, at 8-10.) Petitioner's failure to mention a violation of the federal Constitution, and the state court's lack of discussion regarding any federal constitutional provision or violation in its analysis, made clear Petitioner's state appeal concerned state law issues. (Id.)
Accordingly, Petitioner's Ground Three was not fairly presented to the state courts, and is therefore, unexhausted and procedurally defaulted. Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits.
Further, Petitioner's Ground Three also fails as it pertains to a state-law evidentiary issue. As discussed, supra, a state-law evidentiary issue is not cognizable on federal habeas corpus review. See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68. Petitioner asserts admitting the evidence biased the jury, unfairly prejudiced him, and denied him “fair process.” (Doc. 1 at 8.) However, merely asserting a violation of “due process” or “fair process” cannot transform this state-law issue into a federal one. See Langford, 110 F.3d at 1389.
Petitioner's claim was decided and dismissed on the merits by the Arizona Court of Appeals on direct appeal and remains a state-law issue in the instant Petition. Thus, Petitioner's Ground Three is unexhausted, procedurally defaulted, and not cognizable on federal habeas review.
D. Ground Four
1. Petitioner's Claim
In Ground Four, Petitioner contends that he was deprived of the right to effective assistance when trial counsel failed to: (a) impeach C.S. with her prior felony conviction; (b) present photographs taken by the police that supported his testimony; (c) request a continuance when unable to serve Orlando Nieves and have him appear as a witness at trial; and (d) request a Willits instruction regarding video evidence destroyed by the State. (Doc. 1 at 9.)
Petitioner raised the same claims in his November 25, 2019, Petition for PostConviction Relief. (Doc. 11-3 at 1-2.) Incorporating the State's Response applying the Strickland analysis (Doc. 11-4, Exh. RR), the PCR court ultimately determined trial counsel's performance was not deficient. (Doc. 11-6, Exh. TT, at 1.) On petition for review, the Arizona Court of Appeals granted review but denied relief, finding Petitioner failed to establish an abuse of discretion. (Doc. 11-6, Exh. XX, at 2.)
2. Standard of Review
Ineffective assistance of counsel claims are generally analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a habeas petitioner must show: (1) his counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) that the deficient performance prejudiced the petitioner's defense. Strickland, 466 U.S. at 687-88. “The [petitioner] bears the burden of overcoming the strong presumption that counsel performed adequately..,[a]s with deficiency, Strickland places the burden of proving prejudice on the [petitioner], not the government.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010).
With regard to the prejudice prong of the Strickland test, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As defined by the Supreme Court, a reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). This is a heavy burden for a petitioner to overcome. See Strickland, 466 U.S. at 689 (holding “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'”).
In federal habeas corpus review, the federal court “must apply a ‘doubly deferential' judicial review to a state court's application of the Strickland standard under AEDPA.” Cheney, 614 F.3d at 995. It is Petitioner's burden to show “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). This Court has discretion to review the two prongs of the Strickland test in any order and need not address both prongs if Petitioner makes an insufficient showing in one. See Strickland, 466 U.S. at 697.
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). Accordingly, this Court reviews the PCR court's decision as the last reasoned state court decision to address Petitioner's ineffective assistance of counsel claims.
3. Analysis
The decisions of the Arizona state courts were not objectively unreasonable. The PCR court found Petitioner failed to state a colorable claim. (Doc. 11-6, Exh. TT, at 1.) The Arizona Court of Appeals then held: “We have reviewed the record in this matter, the superior court's order denying the petition for post-conviction relief, the petition for review, response, and reply. We find that petitioner has not established an abuse of discretion.” (Doc. 11-6, Exh. XX, at 2.) An independent review of the record shows these conclusions were not objectively unreasonable.
a. Ground 4(a): Failure to Impeach
In Ground 4(a), Petitioner claims trial counsel was ineffective by failing to impeach victim, C.S., with her prior felony conviction and asserts that this evidence “would or could have” helped to convince the jury that C.S. had motive to implicate Petitioner rather than face more legal consequences. (Doc. 1 at 9, 11.) Incorporating by reference and specifically finding on this claim, the PCR court stated: “Making the decision to not impeach C.S. with a prior felony conviction was sound strategy. C.S. was a fragile and emotional witness, and cross examining C.S. about this fact probably provided minimal to no benefit.” (Doc. 116, Exh. TT, at 2.) The PCR court further emphasized the strength of the evidence; there were two eyewitnesses and DNA evidence that confirmed Petitioner engaged in intercourse with the victim. (Id.)
The trial record shows defense counsel cross-examined both victims on their prior history, specifically, defense counsel questioned C.S. about her and K.T.'s previous instances of domestic violence in their relationship and proceeded to use this information during closing argument to insinuate that C.S. and K.T. falsified the allegations against Petitioner to prevent another domestic violence report against them. (Doc. 11-2, Exh. JJ, at 46.) Moreover, trial counsel's decision to not impeach C.S. with her prior felony conviction is considered a tactical decision regarding trial strategy, which is afforded a strong presumption by the Court that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689.
In the instant Petition, Petitioner reiterates the same argument made in his PCR petition but fails to provide any additional facts or evidence showing unreasonableness in the state courts' application of Strickland. (Doc. 1 at 9; Doc. 11-3, Exh. QQ, at 11-12.) Petitioner does not proffer any affirmative evidence to suggest that the outcome of the proceeding would have been different had defense counsel chosen to explicitly question C.S. about her prior felony. In light of the other evidence (including the trial court's ruling that C.S. could only be impeached with one prior conviction and the nature of that conviction would be sanitized, defense counsel's questioning of C.S. about her and K.T.'s previous instances of domestic violence in their relationship, DNA evidence presented at trial, and two eyewitnesses' testimony), Petitioner is unable to show that there is a reasonable probability that, but for defense counsel's decision to not question C.S. about her prior felony conviction, the result of the proceeding would have been different. Petitioner therefore fails to establish prejudice under Strickland.
Because Petitioner has failed to show that the state courts' rejection of the first ineffective assistance of counsel claim in Ground Four is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts, the Court recommends that the claim be denied.
b. Ground 4(b): Failure to Present Police Photographs
In Ground 4(b), Petitioner argues defense counsel was ineffective when she did not present photographs taken by police that supported his testimony and amounted to exculpatory evidence. (Doc. 1 at 11-12.) Specifically, Petitioner describes (1) police photographs of two different serrated knives found in K.T. and C.S.'s apartment, which he contends supports his argument that he never had the knife, and (2) a photograph of K.T.'s wallet containing condoms, which he claims supports his defense “as to consensual sexual intercourse with K.T. due to her infidelity.” (Id.) He also discusses trial counsel's failure to “note the fact that K.T. had condoms in her wallet.” (Id.)
The PCR court concluded “[t]here was no deficient performance relating to photographs. The jury received photographic evidence. Additional photos of the same items would have been cumulative and would not have permitted [counsel] to meritoriously argue anything she otherwise could not argue. Moreover, the State is correct that the [c]ourt's rulings enforcing the Rape Shield law would have precluded introduction or argument about the victim carrying condoms.” (Doc. 11-6, Exh. TT, at 2.)
The record establishes that photographs of the knives were admitted at trial. (See Doc. 11-1, Exh. V, at 58-59.) Photographs of the condoms were properly precluded under Arizona's “Rape Shield” statute, A.R.S. § 13-1421. That statute states, in relevant part, “[e]vidence of specific instances of the victim's prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence.” A.R.S. § 13-1421. The trial court judge found the “inflammatory or prejudicial nature of the evidence relating to each of the victim's prior sexual conduct [was] substantial and significantly outweigh[ed] the minimal probative value of [the] evidence.” (Doc. 11-1, Exh. M, at 2.) Therefore, Petitioner is unable to establish prejudice under Strickland.
Because Petitioner has failed to show that the state courts' rejection of the second ineffective assistance of counsel claim in Ground Four is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts, the Court recommends that the claim be denied.
c. Ground 4(c): Failure to Request a Continuance
In Ground 4(c), Petitioner argues trial counsel was ineffective when she did not move to continue trial after she was unable to serve Orland Nieves and have him appear as a witness. (Doc. 1 at 12.) Petitioner asserts trial counsel should have “asked the court to give her more time to find or serve him at his located residence.” (Id. at 13.) Petitioner contends Mr. Nieves was a “key defense witness” because he “would have described K.T.'s unusual and aggressive behavior in addition to the fact that she came out of her apartment and made a banging noise with a knife” and “Mr. Niev[es] would have confirmed that, when K.T. initially fabricated her story about [Petitioner], it was ‘her friend' and not her who she claimed ‘got raped.'” (Id.) Petitioner asserts that this “material inconsistent statement” could not be more central to his defense. (Id.) Finally, Petitioner argues trial counsel's “deficient performance obviously might have changed the outcome and thus resulted in prejudice.” (Id.)
In denying the PCR petition, the state court found “[t]here was no deficient performance relating to the failure of Orlando Nieves to appear at trial. Defense counsel requested continuances to locate and serve Mr. Nieves with a subpoena. After delaying the trial, the [c]ourt overruled requests for continued extensions. Mr. Nieves could not be located.” (Doc. 11-6, Exh. TT, at 2.)
The record shows trial counsel informed the court she believed she had located Mr. Nieves but had not yet been able to serve him even though she was “doing [her] best due diligence to do so.” (Doc. 11-2, Exh. DD, at 63.) The record further indicates trial counsel updated the court the next trial day, stating she believed she had located Mr. Nieves but that it was just a matter of getting him served. (Doc. 11-2, Exh. EE, at 7.)
The trial court stated in a minute entry on the sixteenth day of trial: “Defense witness, Mr. Nieves, has not yet been served with a subpoena, although good faith efforts to effectuate service have been made for over two months.” (Doc. 11-2, Exh. EE, at 1.) The court then ordered “allowing a delay in trial as requested by [trial counsel], there being no objection by the State, and on the avowal of all Counsel that trial will not proceed beyond 11/17/2016.” (Id. at 2.) On the seventeenth day of trial, trial counsel informed the court she was unable to serve Mr. Nieves. (Doc. 11-2, Exh. GG, at 5.)
Here, Petitioner does not proffer any affirmative evidence to suggest that the outcome of the proceeding would have been different had defense counsel sought, and received, another continuance to attempt serving Mr. Nieves and securing his appearance at trial. First, it is not clear that Mr. Nieves could have been served. The record shows Petitioner's counsel had been making unsuccessful efforts for two months. Second, Counsel's failure to call a witness does not, by itself, amount to ineffective assistance. See Dows v. Woods, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting claim of ineffective assistance based on counsel's failure to call witnesses when no affidavits were submitted to support petitioner's assertion as to what testimony would have been provided); see also Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (holding a petitioner may not speculate as to what a witness' testimony might be but must adduce evidence to show what it would have been). Petitioner also does not proffer any affirmative evidence to show what Mr. Nieves would have testified to, had he been successfully served. Assuming Petitioner is referring to the conversation between Mr. Nieves and the police, the jury heard testimony about the conversation from Detective Pool. Detective Pool testified he “only spoke to [Mr. Nieves] for a short time” and that Mr. Nieves, to some degree, described something different happening than K.T. did. (Doc. 11-1, Exh. Z, at 73.) That vague testimony falls far short of the above cited case law.
Thus, Petitioner has failed to establish how Mr. Nieves testimony would have raised a “reasonable probability” that the outcome of the trial would have been different. Further, Petitioner is unable to show that there is a reasonable probability that, but for defense counsel's failure to request another continuance to serve Mr. Nieves, the result of the proceeding would have been different. Petitioner therefore fails to establish prejudice under Strickland.
Because Petitioner has failed to show that the state courts' rejection of the third ineffective assistance of counsel claim in Ground Four is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts, the Court recommends that the claim be denied.
d. Ground 4(d): Failure to Request Willits Instruction
In Ground 4(d), Petitioner argues trial counsel was ineffective when she did not request a Willits instruction regarding video from Wild Bill's Saloon after the state failed to preserve video evidence from the evening of the offense. (Doc. 1 at 14.) In Arizona, a Willits instruction allows the jury to conclude fraudulent intent by the State if the State permits evidence within its control to be lost or destroyed. See Willits, 96 Ariz. at 191.
Petitioner alleges his defense was premised on the fact that “[Petitioner], K.T., and C.S. had met at Wild Bill's Saloon on the evening of November 5, 2014.” (Doc. 1 at 14.) Petitioner argues the detective watched three hours of surveillance footage, claimed he did not see Petitioner in the footage, instructed another officer to only retrieve ten minutes of the footage, and as a result, provided testimony that discredited Petitioner's testimony at trial. (Id.)
The PCR court found “[t]here was no deficient performance relating to the failure to request a Willits instruction. Defendant was not entitled to such an instruction based on the tape for the entire evening from Wild Bill's Saloon - at no point did the State possess the tape from the entire evening. The State cannot preserve what it does not possess.” (Doc. 11-6, Exh. TT, at 2.) In concluding the denial of Petitioner's PCR petition, the PCR court stated in part: “The case against [Petitioner] was substantial. The State presented witness testimony, video and DNA evidence proving that [Petitioner] committed the crimes for which he was convicted. Even if the matters about which [Petitioner] now complains constitute deficient performance by [trial counsel], which they are not, none of these matters would have remotely made difference. The State's evidence was substantial.” (Id.)
In the instant Petition, Petitioner does not proffer any affirmative evidence to suggest that the outcome of the proceeding would have been different had defense counsel sought a Willits instruction. The record indicates the State never possessed the entire video from the night of the offense and Petitioner does not proffer any affirmative evidence to the contrary. What Petitioner alleges the surveillance video would have shown is speculative. The officer who viewed the three-hour footage testified that after watching the video footage from the time the victims arrived at the bar until when they left, he only saw Petitioner outside the bar. (Doc. 11-1, Exh. Y, at 65.) He never observed Petitioner inside. (Id.)
Therefore, Petitioner has failed to establish how trial counsel's request for a Willits instruction would have raised a “reasonable probability” that the outcome of the trial would have been different. For that reason, Petitioner fails to establish prejudice under Strickland. The Court finds that Petitioner has failed to show that the state courts' rejection of the fourth ineffective assistance of counsel claim in Ground Four is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. Thus, it is recommended that the Court deny the claim.
E. Ground Five
1. Petitioner's Claim
In Ground Five, Petitioner asserts the trial court abused its discretion when it summarily dismissed Petitioner's initial-of-right post-conviction relief petition and denied his request for post-conviction DNA testing. (Doc. 1 at 17.) Petitioner argues testing a fork, a lollipop stick, or a bottle of wine, in order to obtain K.T.'s DNA, would corroborate Petitioner's defense that he spent time with K.T. in the apartment and thus create a “reasonable probability that he would not have been prosecuted or convicted.” (Id. at 18.)
As to this claim in Petitioner's PCR petition, the state court held “no reasonable probability exists that [Petitioner] would not have been prosecuted nor that his verdict or sentence would have been more favorable as a result of DNA testing.. .Even if K.T. ate lasagna, sucked on a lollipop stick or shared a bottle of wine with [Petitioner], this does not mean that [Petitioner] did not commit sexual assault, as two separate eyewitnesses testified to.” (Doc. 11-6, Exh. TT, at 2-3.)
2. Standard of Review and Analysis
Petitioner failed to properly exhaust his Ground Five federal habeas claim in the state courts. As discussed in Grounds One through Three, supra, Petitioner was required to allege the same claim in the Arizona courts as he raises here. In Petitioner's PCR petition, he stated: “Pursuant to Rule 32.12 of the Arizona Rules of Criminal Procedure, [Petitioner] is entitled to have this [c]ourt order the [DNA] testing of various pieces of evidence.because a reasonable probability exists that [Petitioner] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” (Doc. 11-3, Exh. QQ, at 2.) In comparison, Ground Five in the instant Petition alleges a violation of his Fifth, Sixth, or Fourteenth Amendment rights as a result of the dismissal and denial. (Doc. 1 at 17.)
Accordingly, Petitioner's PCR claim is not the claim he raises here. Petitioner failed to specify any provision of the federal Constitution or statutes and cited no federal case law as the basis for his claim in his PCR petition. While Petitioner asserts in the instant Petition that this Court “should order testing of [the] items for K.T.'s DNA as a remedy or cure for police, state, case agent and defense counsel's errors or omissions resulting in Brady violation(s),” Petitioner's PCR petition made no mention of any such violation. (Doc. 1 at 18; Doc. 11-3, Exh. QQ, at 17-19.)
In Petitioner's PCR petition, he referenced Strickland (Doc. 11-3, Exh. QQ, at 18) in defining “reasonable probability,” as contained in Rule 32.12(d) of the Arizona Rules of Criminal Procedure, but this reference does not satisfy the requirement of specifying the federal basis of the claim during state court proceedings. See Insyxiengmay, 403 F.3d at 668; see also Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (holding that petitioner failed to “fairly present” the federal claim to state courts when he failed to identify the federal basis for his claim); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented the claim in state court only on state grounds).
Petitioner's reference to Strickland cannot be said to have “fairly presented” the federal basis of his claim, as Strickland sets the precedent for analyzing ineffective assistance of counsel claims and Petitioner's claim was grounded in state post-conviction procedure. See Strickland, 466 U.S. at 687. Contextually, citing to Strickland does not support Petitioner's Ground Five claim before the PCR court, nor did that court construe the use of Strickland as Petitioner's way to state the federal basis of his DNA testing claim. (Doc. 11-6, Exh. TT, at 2-3.) Further, the PCR court did not cite any federal constitutional provisions or authorities, and did not apply any other federal theories in ruling that Petitioner was not entitled to post-conviction DNA testing. (Id.) Rather, the court based its decision on Rule 32.12 of the Arizona Rules of Criminal Procedure. (Id.) Petitioner failed to identify the federal basis of his claim and presented this claim in state court only on state law grounds. Thus, Petitioner failed to fairly present the federal basis of the claim to the state court. See Duncan, 513 U.S. at 365-66; Gatlin, 189 F.3d at 888; Hiivala, 195 F.3d at 1106.
Petitioner additionally claims “a reasonable probability exists” that he would not have been prosecuted or convicted as a result of the additional DNA testing. (Doc. 11-3, Exh. QQ, at 2.) However, this is not enough to demonstrate factual innocence, as required to overcome procedural default. See Bousley, 523 U.S. at 623. As with his other procedurally defaulted claims, Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits.
Petitioner's Ground Five also fails as it pertains to an alleged error in the state postconviction 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) (holding a petition “alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”); see also Cooper v. Neven, 641 F.3d 322, 331 (9th Cir. 2011) (dismissing petitioner's federal habeas claims stemming from activities arising out of the state postconviction process, finding regardless of the procedural default status of the claims, they are not cognizable for federal habeas review).
While Petitioner argues the denial and dismissal of his PCR petition violated his Fifth, Sixth, or Fourteenth Amendment of the Arizona and United States Constitutions (Doc. 1 at 17), this claim remains a state post-conviction relief issue and not a federal one. Accordingly, Petitioner's Ground Five is unexhausted, procedurally defaulted, and not cognizable on federal habeas review.
CONCLUSION
The Court concludes Petitioner should not be permitted to amend his habeas Petition, and he 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:
(1) Petitioner's Motion to Amend Petition for Writ of Habeas Corpus (Doc. 24) be DENIED.
(2) 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.