Opinion
CV-16-2003-PHX-GMS (JFM)
03-28-2017
Samer W. Abdin, Petitioner v. Charles L. Ryan, et al., Respondents.
Report & Recommendation on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 5, 2016 (Doc. 5). On October 21, 2016, Respondents filed their Answer (Docs. 14 thru 27 ). Petitioner filed a Reply on December 12, 2016 (Docs. 31, 32).
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals provided the following summary of the evidence at trial:
On March 20, 2010, a thirty-six-foot 2005 Wells Cargo trailer that had been reported stolen by the victim (M.D.) was found by M.D., who subsequently alerted police. Defendant was the registered owner of the license plate affixed to the trailer. Because
the vehicle identification number (VIN) had been etched off, police were initially unable to determine ownership of the trailer.(Exhibit A, Mem. Dec. 8/9/12 at ¶¶ 4-6.) (Exhibits to the Answer, Doc. 14, as contained in Docs. 15-27, are referenced herein as "Exhibit ___.")
When first contacted by police, Defendant initially cooperated by answering questions but eventually ended discussions, stating that further questions should be directed to his attorney, Bob Storrs. Police then communicated with Defendant through Storrs, indicating they suspected the trailer was stolen and requesting it be made available for inspection.
On April 8, 2010, a police officer followed Defendant's truck to a tow yard. After the truck arrived at the tow yard, the trailer was hitched to Defendant's truck. After leaving the tow yard, the truck and trailer were involved in an accident. Thereafter, the trailer was towed to the Scottsdale Police Department's secure yard, where police identified the trailer as the one reported stolen by M.D. Police then executed a search warrant at a residence owned by Defendant's mother, where they found three knives and an ax in a fifth-wheel camper located in the backyard of the residence.
For each docket item (Docs. 15-27) an index of the included exhibits has been provided. Duplicate copies of the exhibits have been included as attachments to the indices, and as separate attachments to the particular index docket item.
B. PROCEEDINGS AT TRIAL
On May 18, 2010, an Information (Exhibit B) was filed in Maricopa County Superior Court charging Petitioner with one count of theft of a means of transportation, and one count of weapons misconduct.
Petitioner proceeded to trial. The evidence at trial was described by the Arizona Court of Appeals as follows:
At trial, the State presented evidence that Defendant had been in unlawful possession of M.D.'s trailer and that he illegally possessed deadly weapons due to his status as a convicted felon. Specifically, M.D. testified he had never met Defendant and did not give Defendant permission to control or possess the trailer. Regarding the misconduct involving weapons charge, a police officer testified Defendant's mother told police that Defendant lived in the fifth-wheel camper. Police officers also testified that the knives found in the camper were designed for lethal use and Defendant admitted ownership of the knives during a telephone conversation. A custodian of records relating to the restoration of civil rights testified that Defendant was a convicted felon and was prohibited from possessing deadly weapons. Defendant's prior criminal record was certified through fingerprint analysis.
Defendant also presented witnesses in his defense.
Defendant's mother and brother testified that Defendant lived in the house, not in the fifth-wheel camper, and that the camper was used for storage. A witness for Defendant also testified that Defendant purchased the trailer from a third party seller but was unable to accept delivery of title because he was unable to contact the seller after the initial transaction.(Exhibit A, Mem. Dec. 8/9/12 at ¶¶ 7-8.)
Petitioner was convicted on both counts, and was sentenced to "an eight-year mitigated term for theft of means of transportation and an eight-year minimum term for misconduct involving weapons, to be served concurrently." (Id. at ¶ 10; Exhibit E, Order Confinement.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal, but counsel was unable to file an issue for appeal, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state court authorities. Petitioner was granted leave to file a supplemental brief in propria persona. (Exhibit A, Mem. Dec. 8/9/12 at ¶ 2.)
Petitioner filed his Supplemental Brief (Exhibit H), arguing the trial court erred in not giving a lesser included offense instruction, and in giving an incomplete instruction on theft of means of transportation, and asserted insufficient evidence to convict. The Arizona Court of Appeals found the issues raised to be without merit. The Court further reviewed the record for reversible error, and found none. (Exhibit A, Mem. Dec. 8/9/12 at ¶ 20.) Petitioner's convictions and sentences were affirmed. (Id. at ¶ 22.)
Petitioner did not seek further review. (Exhibit I, Mandate.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
Petitioner then filed a Notice of Post-Conviction Relief (Exhibit J). Counsel was appointed (Exhibit K, M.E. 8/28/12), but eventually filed a Notice of Completion evidencing an inability to find an issue for review. Counsel was directed to remain in an advisory capacity and Petitioner was granted leave to file a pro per PCR petition. (Exhibit L, M.E. 12/30/13.)
Petitioner filed his pro per PCR petition (Exhibit M), arguing ineffective assistance of counsel, based on counsel's failure to: (1) move to sever the offenses; (2) preserve Petitioner's rights to a speedy trial; (3) move to exclude cumulative and prejudicial evidence; (4) make a substantive opening statement to the jury; and (5) appropriately advise Petitioner regarding waiver of a lesser included offense instruction.
The PCR court rejected each of the claims on the merits. (Exhibit P, M.E. 6/2/14.)
Petitioner then filed a Petition for Review (Exhibit Q), again raising the same claims of ineffective assistance of counsel.
On May 31, 2016, the Arizona Court of Appeals issued its Memorandum Decision (Exhibit S), granting review, but denying relief. The Court found that each of Petitioner's claims of ineffective assistance were without merit.
Petitioner did not seek further review. (Exhibit T, Mandate 8/2/16.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 20, 2016 (Doc.1). Prior to issuance of a service Order, Petitioner filed his Amended Petition (Doc 5). Petitioner's Amended Petition asserts the following five grounds for relief based on ineffective assistance of counsel:
In Ground One, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his counsel failed to move the trial court for a severance of the two charges. In Ground Two, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to object and preserve Petitioner's right to a speedy trail [sic]. In Ground Three, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to file a pretrial motion to exclude evidence that was cumulative, prejudicial, and not part of the indictment. In Ground Four, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to make a "substantive opening statement to the jury." In Ground Five,
Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel advised him to waive the "lesser included offense instructions to the jury."(Order 7/26/16, Doc. 6 at 2 (emphasis added).)
Response - On October 21, 2016, Respondents filed their Response ("Answer") (Doc. 14). Respondents argue that Petitioner's claims are without merit and do not merit relief under the standards provided in 28 U.S.C. § 2254.
Reply - On December 12, 2016 Petitioner filed a Reply (Doc. 31) and supporting Affidavit (Doc. 32). Petitioner argues his Ground One is meritorious.
III. APPLICATION OF LAW TO FACTS
A. APPLICABLE LAW 1. Standards of Habeas Review
Standard Applicable on Habeas - While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner "in custody pursuant to the judgment a State court," 28 U.S.C. § 2254(d) and (e), not every error justifies relief.
Errors of Law - "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly." Woodford v. Visciotti, 537 U. S. 19, 24- 25 (2002) (per curiam). To justify habeas relief, a state court's decision must be "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" before relief may be granted. 28 U.S.C. §2254(d)(1).
Errors of Fact - Federal courts are further authorized to grant habeas relief in cases where the state-court decision "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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).
Moreover, a state prisoner is not free to attempt to retry his case in the federal courts by presenting new evidence. There is a well-established presumption of correctness of state court findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence."
Applicable Decisions - In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
No Decision on the Merits - The limitations of 28 U.S.C. § 2254(d) only apply where a claim has been "adjudicated on the merits in State court." Thus, where a petitioner has raised a federal claim to the state courts, but they have not addressed it on its merits, then the federal habeas court must address the claim de novo, and the restrictive standards of review in § 2254(d) do not apply. Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013). See id. (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits). 2. Ineffective Assistance of Counsel
Applicable Standard on Ineffective Assistance Claims - Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should "presume that the attorneys made reasonable judgments and decline to second guess strategic choices." U.S. v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000).
An objective standard applies to proving such deficient performance, and requires a petitioner to demonstrate that counsel's actions were "outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense." United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting Strickland, 466 U.S. at 687-90). The reasonableness of counsel's actions is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689.
"The law does not require counsel to raise every available nonfrivolous defense. Counsel also is not required to have a tactical reason—above and beyond a reasonable appraisal of a claim's dismal prospects for success—for recommending that a weak claim be dropped altogether." Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citations omitted).
Moreover, it is clear that the failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). / / / / B. GROUND 1 - IAC RE SEVERANCE 1. Parties Argument
In Ground One, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his counsel failed to move the trial court for a severance of the two charges. (Amend. Pet., Doc. 5 at 6.)
Respondents argue that to the extent the claim is founded on a failure to sever under state law, it is not cognizable on habeas review because there is no federal constitutional right to severance. (Answer, Doc. 14 at 16.) Respondents further argue that the state court's rejection of this claim was not an unreasonable application of or contrary to Supreme Court law. (Id. at 15.) And, Respondents argue that Petitioner has failed to show prejudice from any misjoinder sufficient to violate the Constitution. (Id. at 16-17.)
Petitioner argues in his Reply that his claim is not one based on severance, but one based on ineffective assistance, and thus the absence of federal law on severance is not controlling, and state law must be looked to as a measure of counsel's performance. (Doc. 31 at 2.) Petitioner argues, pointing to his Affidavit (Doc. 32), that counsel's decision to seek severance was not sound trial strategy, but based on economic concerns. (Doc, 31 at 3.) Petitioner argues the appropriate measure of prejudice is whether Petitioner was denied his right to a fair trial. (Id at 5.) Petitioner also argues that the jury instructions did not ameliorate the prejudice from the failure to sever. (Id. at 7-8.) 2. Factual Background
Petitioner was tried for both the theft and weapons charges concurrently. An element of the weapons charge was Petitioner's prior conviction. Consequently, evidence was introduced about his prior conviction. On direct appeal, the Arizona Court of Appeal summarized the evidence as: "A custodian of records relating to the restoration of civil rights testified that Defendant was a convicted felon and was prohibited from possessing deadly weapons." (Exhibit A, Mem. Dec. 8/9/12 at ¶ 7.)
Officer Pocklington testified as to the records of Petitioner's prior felony conviction. That testimony was limited to referencing the case number, date of offense, and date of conviction and that the convictions were for a felony, and that Petitioner was the defendant. (Exhibit V, R.T. 2/16/11 at 146-148.) Subsequently, the parties stipulated that Petitioner had two prior convictions in 2004, and the state's fingerprint expert who was to connect Petitioner to the convictions, was excused. (Id. at 159.)
In disposing of this claim, the Arizona Court of Appeals summarized the relevant facts as follows: "although the jury was not instructed to consider each offense separately, it nonetheless was instructed the state must prove each separate offense beyond a reasonable doubt and the jury 'must not consider a prior conviction as evidence of guilt of a crime for which the defendant is now on trial.'" (Exhibit S, Mem. Dec. 5/31/16, at ¶ 4.) 3. State Court Ruling
After referencing Strickland's two prong standard (Exhibit S, Mem. Dec. 5/31/16, ¶ 3), the Arizona Court of Appeals rejected this claim, concluding that Petitioner failed to show prejudice from any defective performance by counsel:
Assuming, as we must, that the jury followed the instructions provided, which when considered as a whole, correctly stated the law, no "fatal" error occurred. Concomitantly, Abdin did not suffer prejudice by counsel's failure to file a motion to sever even if it were error not to do so.(Id. at ¶ 5 (citations omitted).) 4. Applicable Law
Relevant Law In Evaluating Counsel's Performance - In arguing this claim, Respondents seem to take the novel view that when a habeas court reviews a state prisoner's claim of ineffective assistance of counsel, the performance of counsel can only be judged against the limited grounds for relief available in a habeas proceeding. (Answer, Doc. 14 at 16.) Under Respondents' apparent construct, defense counsel could forfeit a defendant's rights under myriad state laws, rules and constitutional provisions, and the habeas court would remain powerless to recognize the resulting violation of the petitioner's Sixth Amendment right to competent counsel.
While the habeas court's evaluation of the Sixth Amendment claim may be limited by 28 U.S.C. § 2254, Respondents proffer no support for the contention that the standard of performance for counsel under the Sixth Amendment is limited to protecting the defendant's federal constitutional rights. To the contrary, if Petitioner can show that counsel performed deficiently, whether in light of available federal constitutional defenses, or state law defenses, and can show resulting prejudice under either set of laws, then he has established a meritorious Sixth Amendment claim of ineffective assistance of counsel. It is counsel's failure to be effective which gives rise to a cognizable federal claim (under the Sixth amendment), not the law which should have guided counsel's conduct in the state court.
Moreover, only if the Petitioner can show a meritorious claim does it become relevant whether habeas relief is appropriate given the limitations of the AEDPA embodied in 28 U.S.C. § 2254.
Of course, if the state court has spoken to the viability of a tactic or strategy under state law, then that state court determination of state law may be binding on the habeas court. But the habeas court remains free to evaluate on its own the merits of the Sixth Amendment claim of ineffective assistance in light of such state court rulings.
Relevant Prejudice - Petitioner argues that having shown that counsel should have moved to sever, it is sufficient for him to show that the misjoinder resulted in sufficient prejudice that he was denied a constitutional right to a fair trial, citing U.S. v. Lane, 474 U.S. 438 (1986). (Reply, Doc. 31 at 5.) The Lane court opined that "an error involving misjoinder 'affects substantial rights' and requires reversal only if the misjoinder results in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.'" 474 U.S. at 449. However, Lane dealt not with a claim of ineffective assistance, but a direct claim of misjoinder under Fed. R. Crim. Proc. 14 (severance) and 52(a) (harmless error).
Here Petitioner's claim is founded upon the ineffective assistance of counsel. In that context, the appropriate measure of prejudice is not merely a substantial and injurious effect or influence in determining the jury's verdict, but whether there is a reasonable probability that the ultimate outcome of the proceeding would have been different had counsel not performed deficiently. Strickland, 466 U.S. at 688. A finding of a substantial and injurious effect or influence on a verdict would only be sufficient to support a claim of ineffectiveness if that influence or effect were so great that it established a reasonable probability of acquittal had there not been joinder.
Joinder and Severance - "Improper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." United States v. Lane, 474 U.S. 438, 446, n. 8 (1986). Moreover, "it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro v. United States, 506 U.S. 534, 540 (1993). But see Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir. 2010) (in considering a substantive claim of misjoinder in a 2254 proceeding, "we hold that neither Zafiro v. United States nor United States v. Lane establish a constitutional standard binding on the states requiring severance").
Under Arizona law, joinder of offenses is permitted if they: "(1) Are of the same or similar character; or (2) Are based on the same conduct or are otherwise connected together in their commission; or (3) Are alleged to have been a part of a common scheme or plan." Ariz. R. Crim. Proc. 13.3(a). Offenses are considered otherwise connected within the meaning of Rule 13.3(a)(2) when "the offenses arose out of a series of connected acts, and the evidence as to each count, of necessity, overlaps;" " where most of the evidence admissible in proof of one offense [is] also admissible in proof of the other;" or "where there [are] common elements of proof in the joined offenses." State v. Martinez-Villareal, 145 Ariz. 441, 446, 702 P.2d 670, 675 (1985) (citations omitted).
Even where joinder is appropriate, severance may be sought if it "is necessary to promote a fair determination of guilt." Ariz. R. Crim. Proc. 13.4(a). A motion to sever must be made on a timely basis. "A defendant's motion to sever offenses or defendants must be made at least 20 days prior to trial or at the omnibus hearing and, if denied, renewed during trial at or before the close of the evidence." Ariz. R. Crim. Proc. 13.4(c). To challenge the denial of a severance, a defendant "must demonstrate compelling prejudice against which the trial court was unable to protect." State v. Prince (Prince I), 204 Ariz. 156, 159 ¶ 13, 61 P.3d 450, 453 (2003) (internal quotation omitted). 5. Application of Law
Deficient Performance - The state court did not address whether counsel performed deficiently with regard to a motion to sever, but merely concluded that "even it were error not do so," Petitioner was not prejudiced. (Exhibit S, Mem. Dec. 5/31/16 at 4.)
Federal law, absent a denial of due process, does not preclude joinder. However, neither Respondents nor the Arizona Court of Appeals have enunciated a theory under which joinder would have been appropriate under Arizona law. At best, it might be argued that Petitioner's charges for theft and weapons misconduct "arose out of a series of connected acts, and the evidence as to each count, of necessity, overlaps," Martinez-Villareal, supra, because the evidence was that the weapons misconduct was discovered in the course of investigating the theft. But, Arizona law appears to preclude such a tenuous connection. In State v. Curiel, 130 Ariz. 176, 634 P.2d 988 (App. 1981), following a traffic stop, a search of the defendant's purse revealed heroin, and a search of luggage in the trunk of the vehicle containing the defendant's property revealed a stolen handgun. The defendant was charged with possession of heroin and possession of a stolen gun. The court concluded the charges should not have been tried jointly.
Rule 13.3(a)(2) permits joinder of counts where the crimes "(a)re based on the same conduct or are otherwise connected together in their commission." The fact that the crimes were committed on the same day does not by itself connect them in their commission. State v. Stago, 82 Ariz. 285, 312 P.2d 160 (1957). We find nothing in the
record to show that the heroin charge and the theft charge were "based on the same conduct" and obviously they were not "connected together in their commission." The only thing connecting the two charges is that they both came to light as the result of a search of one automobile. In our opinion, the fact that evidence of two crimes has come from one source is not sufficient under Rule 13.3(a) to justify their joinder. In light of the inherent prejudicial impact of the heroin charges on the charge of theft of a gun, we cannot say that failure to sever was not prejudicial. Thus, the matter must be remanded for a new trial as to Elizabeth on all counts.Curiel, 130 Ariz. at 184, 634 P.2d at 996. Thus, much like Petitioner, the defendant in Curiel was charged on disparate charges, with the only connection being that the offenses were discovered in the course of the same investigation. Accordingly, it appears that joinder was not permitted under Ariz. R. Crim. Proc. 13.3(a).
Even if joinder was permissible under Rule 13.3(a), a motion to sever based on prejudice under Rule 13.4 was possible. However, for the reasons discussed hereinafter, there was no significant prejudice to Petitioner from the joinder. Accordingly, counsel could have made a reasonable tactical decision that the limited likelihood of success from such a motion made it inadvisable to pursue the matter. --------
Respondents point to nothing to show that counsel actually pursued severance, or had some plausible tactical reason for not doing so. Given the fact that the weapons charge was the sole reason for admitting before the jury Petitioner's prior conviction.
Moreover, Petitioner has provided his own affidavit and a letter from trial counsel asserting that the reason for not pursuing severance was purely an economic decision, and not one based on some strategic purpose:
Mr. Fisher and I discussed severing the cases in which he stated, "I am not getting paid enough for two trials." He implied that I had a better chance if the cases were severed because of my past convictions.(Petitioner's Affidavit, Doc. 32.)
We contemplated attempting to sever the charges my client was facing but due to financial concerns of my client we decided that the small amount of money Mr. Abdin had available to him did not warrant proceeding along those lines.(Reply, Doc. 31 at Attachment, Letter 12/1/16.)
Thus, under the evidence available, it is at least arguable that counsel performed deficiently in failing to pursue severance.
Prejudice - The state court found an absence of prejudice from any purported deficiency of counsel. The court made that finding based solely on the jury instructions that "the state must prove each separate offense beyond a reasonable doubt and the jury 'must not consider a prior conviction as evidence of guilt of a crime for which the defendant is now on trial.'" (Exhibit S, Mem. Dec. 5/31/16 at ¶ 4.)
Petitioner fails to show how this was an unreasonable determination of the facts or contrary to or an unreasonable application of Supreme Court law.
At best, Petitioner argues that joinder of charges can result in the risk that the jury will fail to compartmentalize evidence, and that such risks were heightened here because the prosecution "repeatedly encouraged the jury to consider the two set of charges in concert based on Abdin's previous criminal activities." (Reply, Doc. 31 at 6.) Petitioner further argues that the limiting instruction did not ameliorate the risk, because the instruction simply precluded relying on a prior conviction as evidence of guilt, when the prior conviction was an element of the weapons offense that the jury was required to find in order to convict. (Id. at 7.) Finally, Petitioner argues that prejudice occurred because the evidence on the theft charge was in equilibrium between guilt and innocence, and therefore the jury must have relied on Petitioner's criminal past to convict. (Id. at 8.)
To establish prejudice, it is not sufficient for Petitioner to show that there was some effect on the jury from the joinder. Rather, Petitioner must show a reasonable probability that, but for counsel's failure to file a motion to sever, the verdict would have been different. That is "'a reasonable probability that the verdict would have been different' if the trial judge granted the hypothetical severance motion." Trevino v. Evans, 521 F. Supp. 2d 1104, 1111-12 (S.D. Cal. 2007).
Here, the evidence of Petitioner's guilt was not in equilibrium. On the one hand, the prosecution presented evidence that Petitioner asserted to an officer on March 20, 2010 that he owned the trailer, had owned it for years, that it looked newer than the 1994 date registered to the license because he had refurbished it, and that he purported to have a title and bill of sale for the trailer. (Exhibit W, R.T. 2/15/11 at 64-83.) This was inconsistent with testimony of the owner of the trailer that it had been stolen between the 28th and 30th of December, 2009, and had discovered it again on March 20, 2010. (Exhibit W, R.T. 2/15/11 at 26-28.) The stolen trailer was involved in an accident on April 8, 2010, and had a license plate registered to a different trailer, a 2007 Pace trailer. (Id. at 123-129.) Petitioner purchased that 2007 Pace trailer on April 8, 2010 from JF. When a driver came to pick up the trailer from JF the evening of April 8, 2010, the license plate was missing from the trailer. Some of the sale documents provided by JF were found in the stolen trailer after it was in the accident. (Id. at 138-151.) The documents provided by JF on the 2007 Pace Trailer were used by Petitioner's associates to recover the trailer from a tow yard before it was in the accident. (Exhibit V, R.T. 2/16/11 at 42-44.) After being arrested, Petitioner volunteered to the transporting officer: "I knew the trailer was stolen. I was trying to give it back to you guys." (Id. at 114-115.) In a subsequent, recorded interview, Petitioner denied making the statement. (Id. at 139.)
On the other hand, Petitioner presented testimony of a longtime friend, JPE, that the friend was present in early 2010 when Petitioner purchased a trailer from some unnamed people, paid them half of the purchase price, but was unable to get the title from them. (Exhibit U, R.T. 2/22/11 at 39-41.) However, JPE admitted to being a convicted felon. (Id. at 50.) Petitioner presented testimony from another longtime friend, GS, that he had heard that Petitioner was trying to get ahold of a guy that had sold him the trailer. (Id. at 58-59.) Finally, petitioner presented testimony from his mother that she recalled him having trouble in March, 2010 getting a title to a trailer he had purchased. (Id. at 78.)
Thus, Petitioner's version of the facts, that he was an honest purchaser of the trailer who had been duped by sellers who failed to deliver a title, was: (1) contradicted by Petitioner's assertions that he had owned the trailer for years and had the title, and that it looked newer than the 1994 license date because he had refurbished it; (2) contradicted by Petitioner's admission on arrest that he knew the trailer was stolen; (3) contradicted by the use of the title and licensing of the recently purchased 2007 Pace trailer in connection with the stolen trailer; and (4) supported by nothing more than the statements of two longtime friends (the more informative of which was a convicted felon) and Petitioner's mother, all of which were devoid of any verifiable particulars.
In contrast, the purportedly prejudicial evidence regarding Petitioner's felony prior was circumspect evidence that Petitioner had been convicted of a felony.
Q Okay. And you also specifically asked if he was a convicted felon; correct?(Exhibit V, R.T. 2/16/11 at 138.)
A Yes.
Q And what was his answer?
A He said he was.
Q By Mr. Ensign: Detective, I'm approaching with what's been marked as Exhibit 4 and 5.(Id. at 145-146.)
Do you recognize those documents?
A Yes, I do.
Q And those are Superior Court minute entries?
A Yes.
Q And, specifically, those are sentencing minute entries; correct?
A Correct.
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Q And do those documents show that the defendant was convicted of a felony?
A Yes.
Arguably, under Arizona evidentiary law, even though Petitioner did not testify at trial, because he introduced evidence of hearsay of his out-of-court statements about the history of the trailer (to his friends and his mother), Petitioner's felony convictions could be used to impeach those statements. See State v. Hernandez, 191 Ariz. 553, 959 P.2d 810, (App. 1998) (allowing evidence of defendant's felony convictions to impeach hearsay evidence of defendant's out-of-court excited utterance). Thus, his convictions could have been admissible even if the weapons charge was tried separately.
Even if not properly admissible in a severed trial, the evidence on Petitioner's priors was so limited that, in light of the weight of evidence on the theft, the undersigned cannot find a reasonable probability that the jury would not have found Petitioner guilty if the conviction evidence had not been admitted. Perhaps, the result might be different if there was evidence that the prior convictions were for a substantially similar crime. Cf. United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987) ("Prejudice [from] evidence of a defendant's criminal conduct...must be included in the calculation together with the prejudice arising from the specific nature of the conduct."). But here, the evidence had been sanitized down to the mere fact of a prior conviction.
Moreover, as observed by the state court, "although the jury was not instructed to consider each offense separately, it nonetheless was instructed the state must prove each separate offense beyond a reasonable doubt and the jury 'must not consider a prior conviction as evidence of guilt of a crime for which the defendant is now on trial.'" (Exhibit S, Mem.Dec. 5/31/16 at ¶ 4.) The trial court instructed:
The defendant has pleaded not guilty to each charge. This plea of not guilty means the state must prove each element of each charge beyond a reasonable doubt. You must -- the state must prove guilt beyond a reasonable doubt based on the evidence.
* * *
The state has the burden of proving the defendant guilty beyond a reasonable doubt. This means the state must prove each element of each charge beyond a reasonable doubt.
* * *
The state has charged the defendant, Samer Wahab Abdin, with the crimes of: count 1, theft of means of transportation; and count 2, misconduct involving weapons. You must not think that the defendant is guilty just because of these charges. The defendant has pleaded not guilty. The plea of not guilty means that the state must prove each element of these charges beyond a reasonable doubt.(Exhibit U, R.T. 2/22/11 at 96-98.)
The crime of misconduct involving weapons requires proof that the defendant knowingly possessed a knife, a deadly weapon; and, two, was a prohibited possessor at the time of possession of the weapon. Prohibited possessor means any person who has been convicted within or without this state of a felony and whose civil rights to possess or carry a deadly weapon has not been restored.(Id. at 99-100.)
In order for you to return a guilty verdict against the defendant of misconduct involving weapons, the state must prove beyond a reasonable doubt that the Defendant knowingly possessed a deadly weapon, and that the defendant was a prohibited possessor.
You have heard evidence that defendant has previously been convicted of a criminal offense. You must not consider a prior
conviction as evidence of guilt of a crime for which the defendant is now on trial.(Id. at 102-103.)
While an instruction that evidence on one crime could not be used to convict on the other might have been preferable, Petitioner proffers no reason to believe that the instructions given were not adequate to charge the jury with its duty to require proof of each offense. In Johnson, the Ninth Circuit observed in the context of a substantive severance claim (rather than an ineffective assistance claim): "When evidence concerning the other crime is limited or not admissible, our primary concern is whether the jury can reasonably be expected to 'compartmentalize the evidence' so that evidence of one crime does not taint the jury's consideration of another crime." 820 F.2d at 1071. "Ultimately, the question is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and limited admissibility." United States v. Brady, 579 F.2d 1121, 1128 (9th Cir. 1978) (addressing substantive severance claim among defendants). Moreover, even if such an instruction would have been preferable or even required to avoid reversal for misjoinder, that does not mean that its absence resulted in a conviction rather than an acquittal. To establish prejudice in the context of his ineffective assistance claim, that is exactly what Petitioner must show.
Moreover, Petitioner posits no reason to conclude that the guilty verdict resulted from any conflict between the requirement of finding a prior felony to convict on the weapons charge and the instruction that a prior conviction was not evidence of guilt. Reasonable jurors would discern that the later instruction was intended to convey that the prior conviction did not of itself establish guilt, even if proof of the conviction might be a predicate status necessary to the commission of the offense, but the state remained obligated to prove all of the elements of each offense. "[We] presum[e] that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." Francis v. Franklin, 471 U.S. 307, 324, n. 9 (1985). See also Strickland, 466 U.S. at 694 (in assessing prejudice for purposes of ineffective-assistance claim, "a court should presume ... that the judge or jury acted according to law"). Here, Petitioner asks this court to assume that the jury must have concluded from an instruction that a prior could not establish guilt, that because a conviction was an element of an offense, that a prior conviction could in fact be sufficient proof of ultimate guilt. A more reasonable conclusion is that the jury discerned the difference between proof of an element of a prior conviction, and the prior conviction as a basis to assume guilt.
Petitioner complains that the state "repeatedly encouraged the jury to consider the two sets of charges in concert based on Abdin's previous criminal activities." (Reply, Doc. 31 at 6.) But Petitioner fails to point out where such encouragement occurred. The undersigned has failed to find such encouragement in the record.
For these reasons, the undersigned finds no Strickland prejudice from any deficiency of counsel.
Even if the undersigned could find a reasonable probability of a different result, Petitioner proffers no basis on which this Court could conclude that a contrary determination by the Arizona Court of Appeals was an unreasonable determination of the facts or an unreasonable application of or contrary to Supreme Court law.
Accordingly, Ground 1 is without merit and must be denied. C. GROUND 2 - IAC RE SPEEDY TRIAL 1. Parties Arguments
In Ground Two, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to object and preserve Petitioner's right to a speedy trial. Petitioner argues that (under stae law), his last day for trial was October 23, 2010, and nonetheless counsel failed to object when the matter was continued and set for a conference on November 24, 2010. (Amend. Petition, Doc. 5 at 7.)
Respondents argue that the state court's rejection of the underlying claim was not contrary to or an unreasonable application of Supreme Court law. Respondents further argue that the speedy trial deadline was properly extended under state law, and that Petitioner has failed to show any prejudice from delay beyond the statutory deadline, and therefore he has failed to show prejudice from counsel's actions. (Answer, Doc. 14 at 19-21.)
Petitioner does not reply on this claim. 2. Factual Background
In addressing this claim in Petitioner's PCR proceeding, the Arizona Court of Appeals summarized the factual background:
On September 13, 2010, "counsel" advised the court they were not ready to proceed to trial on September 10, 2010, because Abdin had been charged in another matter, and"[u]pon oral motion by counsel for the Defense," the trial date was vacated; counsel indicated Abdin waived "time" and the court set a "new last day" of October 23, 2010. At his initial appearance in the new matter, held on September 20, 2010, Abdin was taken into custody and the court set a status conference for September 23, 2010, which, on Abdin's motion, was continued until September 30, 2010. New defense counsel was substituted on September 20, 2010, and at a hearing on October 21, 2010, the court scheduled a pretrial conference for November 24, 2010, without objection. At the November 24, 2010 hearing, the court set a status conference for December 20, 2010, and directed counsel "to file a calculation [by December 8, 2010] of what they determine the last day [for trial] to be."(Exhibit S, Mem. Dec. 5/31/16 at ¶¶ 6-7.) 3. State Court Ruling
In its December 21, 2010 ruling, the trial court rejected both parties' last day calculations, denied Abdin's motion to dismiss based on a violation of his right to a speedy trial, and adopted a "Last Day" of March 8, 2011. In that ruling, the court concluded, "The delay between the original September 20 trial date and whatever trial date is ultimately set is a delay 'occasioned by or on behalf of the Defendant,' and is therefore excluded time pursuant to Rule 8.4(a)[,Ariz. R. Crim. P.]." The court also noted defense counsel had not objected when the court set the next hearing for November 24, "more than a month beyond the purported Last Day [of October 23, 2010]."
Petitioner raised his claim in Ground Two in his PCR petition for review. In rejecting the claim, the Arizona Court of Appeals ruled:
Based on inter alia, at least two continuances requested by Abdin and his waiver of time, along with his failure to identify any prejudice he suffered as a result of a purported speedy trial violation, the trial court denied his claim of ineffective assistance. To the extent Abdin conflates the showing of prejudice required to prevail on a speedy-trial claim and the prejudice he must show to obtain relief for ineffective assistance of counsel, he fails to describe on review any discernible prejudice or detriment stemming either from the minimal delay of his trial, held in February 2011, or from counsel's failure to timely seek dismissal. See United States v. Loud Hawk, 474 U.S. 302, 315 (1986) (defendant bears burden to show more than possibility of prejudice in order to establish violation of speedy-trial rights). Therefore, even assuming counsel performed deficiently, in light of Abdin's failure to establish how he was prejudiced, the court did not abuse its discretion by denying his claim. Moreover, even if the court had granted Abdin's motion to dismiss, it could have done so without prejudice, thereby permitting the state to refile immediately. See Ariz. R. Crim. P. 8.6.(Exhibit S, Mem. Dec. 5/31/16 at ¶ 8.) 4. Applicable Law
Federal Speedy Trial Rights - The Sixth Amendment of the United States Constitution reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." State defendants have a right under the Sixth Amendment to a speedy trial. Kloper v. North Carolina, 386 U.S. 213 (1967). But the Sixth Amendment sets no explicit deadlines. "The speedy-trial right is 'amorphous,' 'slippery,' and 'necessarily relative.' It is 'consistent with delays and depend[ent] upon circumstances.'" Vermont v. Brillon, 556 U.S. 81, 89 (2009).
Accordingly, in reviewing a Sixth Amendment speedy trial clause violation, the court must consider four factors: (1) the length of the pretrial delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972)). "None of these factors are either a necessary or sufficient condition to a finding of a deprivation of the right to a speedy trial." United States v. Williams, 782 F.2d 1462, 1465 (9th Cir.1985).
Arizona Speedy Trial Rights - Arizona Constitution article 2, section 24 requires: "In criminal prosecutions, the accused shall have the right ... to have a speedy public trial...." Arizona has adopted its Rule 8, Arizona Rules of Criminal Procedure which grants even "stricter speedy trial rights than those provided by the United States Constitution." State v. Tucker, 133 Ariz. 304, 308, 651 P.2d 359, 363 (1982).
Under Arizona's Rule 8.2, a defendant has a right to commence trial within 150 days of arraignment, or 180 days if he has been released from custody. Ariz. R. Crim. Proc. 8.2(a). However, Rule 8.4 excludes various time periods from the calculation, including "[d]elays occasioned by or on behalf of the defendant." Ariz. R. Crim. Proc. 8.4(a). Rule 8.5 permits an extension of that date "upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." Ariz. R. Crim. Proc. 8.5(b). 5. Application of Law
To the extent that Petitioner complains that counsel took no action with regard to his speedy trial rights, the record belies that contention. Counsel in fact filed a motion to dismiss based on a speedy trial right, which the trial court denied on December 21, 2010. (Exhibit S, Mem. Dec. 5/31/16 at ¶ 7.)
Here, Petitioner proffers no reason to reject the state court's findings that any delay beyond when the was originally set, September 20, 2010, until March 8, 2011 was delay occasioned by or on behalf of Petitioner, and thus excluded from the speedy trial calculation. Rather, he simply complains that at a status conference, the last day had been determined to be October 23, 2010, but the matter was continued until November 24, 2010 without objection by counsel. Given the unchallenged findings that the delay until March 8, 2011 was excludable under Rule 8.4(a), there would have been no basis for counsel to object.
Nor does Petitioner proffer any basis to conclude that the delay was such that it would trigger a basis to dismiss under the Sixth Amendment. Under Barker, there are no comparable bright line rules on when a trial ceases to be speedy. Petitioner fails to show that the Barker factors show a violation.
Petitioner proffers nothing to show that the length of the delay until trial was sufficient to trigger Sixth Amendment concerns. The primary inquiry is whether the trial was, in fact, not speedy. "Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay, since, by definition, he cannot complain that the government has denied him a 'speedy' trial if it has, in fact, prosecuted his case with customary promptness." Doggett v. U.S., 505 U.S. 647, 651-652 (1992). "Depending on the nature of the charges, the lower courts have generally found post-accusation delay 'presumptively prejudicial' at least as it approaches one year." Doggett, 505 U.S. at 652, n. 1. The Ninth Circuit has recognized that a sixth-month delay is a "borderline case," although there is a general consensus among the other courts of appeals that eight months constitutes the threshold minimum. U.S. v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003). Here, Petitioner's trial was commenced February 15, 2011. (See Exhibit W, R.T. 2/15/11.) That was less than 9 months after the Information (Exhibit B) against Petitioner was filed.
Moreover, the state courts found that delay after September 20, 2010 was attributable to Petitioner. "[D]elay attributable to the defendant's own acts or to tactical decisions by defense counsel will not bolster defendant's speedy trial argument." McNeely v. Blanas, 336 F.3d 822, 827 (9th Cir. 2003).
Further, Petitioner proffers no prejudice resulting from the delay. The speedy trial guarantee does not seek to prevent the defense's fortuitous loss of the ability to win by ambush, but to limit his ability for a "fair" trial. "[I]nability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." Barker, 407 U.S. at 532. Thus, actual prejudice is typically demonstrated in three ways: "oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused's] defense will be impaired." Doggett, 505 U.S. at 654 (internal quotation marks and citations omitted). Petitioner proffers nothing to show that any of these existed as a result of the delay (as opposed to that inherent in even the speediest of trials).
Under these circumstances, Petitioner has failed to show that additional attempts by counsel to assert Petitioner's speedy trial rights would not have been futile.
To the extent that Petitioner intends to simply complain that counsel's choice to pursue strategies, continuances, etc. that resulted in delay and/or the waiver of Petitioner's speedy trial rights, Petitioner proffers nothing to suggest that such choice was not a reasonable tactical choice.
Accordingly, Petitioner's claim of ineffectiveness with regard to his speedy trial rights is without merit.
Even if the undersigned could conclude otherwise on this claim, Petitioner proffers no basis on which this Court could conclude that a contrary determination by the Arizona Court of Appeals was an unreasonable determination of the facts or an unreasonable application of or contrary to Supreme Court law.
Accordingly, Ground Two is without merit and must be denied. D. GROUND 3 - IAC RE MOTION TO EXCLUDE 1. Parties Arguments
In his Ground Three, Petitioner alleges that he received ineffective assistance of counsel when trial counsel failed to file a pretrial motion to exclude evidence that was cumulative, prejudicial, and not part of the indictment. In particular, Petitioner complains that the indictment charged him with "misconduct involving a weapon," and yet four weapons were introduced at trial as exhibits. He argues that only one weapon should have been admitted, and the additional evidence was cumulative and unfairly prejudicial, and counsel's failure to object was ineffective assistance. (Amend. Pet. Doc. 5 at 8.)
Respondents argue that counsel did object at trial and was overruled. Respondents further argue that the rejection of this claim by the Arizona Court of Appeals was not an unreasonable application of Strickland. (Answer, Doc. 14 at 21-23.) 2. State Court Ruling
In rejecting this claim, the Arizona Court of Appeals ruled:
Abdin next contends trial counsel should have filed a motion in limine to exclude the four weapons officers seized from a camper where Abdin was living. He asserts this evidence, which formed the basis for the prohibited possessor charge, was cumulative and prejudicial. At trial, defense counsel objected to the admission of the four weapons, asserting Abdin had only been charged with possession of one weapon; specifically, Abdin was charged with "misconduct involving weapons" for having "knowingly possessed a knife, a deadly weapon, while being a prohibited possessor." The trial court denied the objection, finding there had been "sufficient disclosure" of all four weapons before trial. Notably, even if counsel had filed a motion in limine, there is no reason to believe the court would have granted it, and even if it had, there was overwhelming evidence that Abdin was guilty of weapons misconduct, particularly in light of his admission to officers that he owned the subject weapons. Absent a showing of prejudice, which Abdin has not made, he has failed to establish a claim of ineffective assistance of counsel.(Exhibit S, Mem.Dec. 5/31/16 at ¶ 9.) 3. Application of Law
As before the Arizona Court of Appeals, Petitioner proffers no reason to believe that a motion in limine by trial counsel would have fared better than his objection at trial. Indeed, counsel could have made a reasonable tactical decision to delay raising the issue until the trial had progressed to that point, allowing him to argue on the basis of a concrete record rather than speculation about the progress of trial. And, counsel could have made a reasonable tactical decision that Defendant would fare better on the issue if it were not raised until trial, and the prosecution had less time to compose a response. Thus, the undersigned can find no deficient performance by counsel.
Nor does Petitioner proffer anything to suggest that the exclusion of three of the weapons would have resulted in a different outcome at trial. As discussed by the Arizona Court of Appeals, Petitioner admitted that he owned the weapons, and there was overwhelming evidence of his guilt on the weapons charge. Accordingly, the undersigned can find no prejudice from any failure of counsel to file a motion in limine or motion to exclude, rather than merely objecting to the admission of the evidence.
Accordingly, Petitioner's claim of ineffectiveness with regard to the exclusion of the weapons is without merit.
Even if the undersigned could conclude otherwise on this claim, Petitioner proffers no basis on which this Court could conclude that a contrary determination by the Arizona Court of Appeals was an unreasonable determination of the facts or an unreasonable application of or contrary to Supreme Court law.
Accordingly, Ground Three is without merit and must be denied. E. GROUND 4 - IAC RE OPENING STATEMENT 1. Parties Arguments
In Ground Four, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to make a "substantive opening statement to the jury," failing to refer to the evidence, and instead telling "a joke about Lord Baltimore and Winston Churchill." (Amend. Pet. Doc. 5 at 9.)
Respondents argue that the Arizona Court of Appeals appropriately deemed counsel's choice of opening statement to have been a trial tactic, and to have been reasonable. Respondents further argue that there is no constitutional right to an opening statement, that the opening statement had a sound tactical basis, and that the evidence would not have supported the arguments Petitioner proposes. Finally, Respondents argue that Petitioner has failed to show prejudice. (Answer, Doc. 14 at 23-25.)
Petitioner does not address this Ground in his Reply. 2. Factual Background
In his opening statement to the jury, trial counsel made no reference to the charges or evidence, but simply told a story of Winston Churchill and Lord Baltimore encountering each other at a subway station, having a young man ask for the time, and Baltimore rudely refusing to tell him the time. When questioned by Churchill, Baltimore provided a chain of logic that the young man might be nice enough that he would end up coming to dinner, and eventually marrying Baltimore's daughter, and he wouldn't want his daughter marrying a man who couldn't afford a watch. (Exhibit W, R.T. 2/15/11 at 23, et seq.)
In his closing, counsel argued in part:
You all remember the first day we started trial I came up here, and I told you this crazy story about a young boy who asked for the time of day from Lord Baltimore from -- and from Winston Churchill. I imagine that all of you went home that day, and your loved one said, well, how'd it go today; and you're shaking your head, going, this lawyer got up in front of us and told us a story in opening about a young boy who was who was wanting to know the time of day from two gentlemen in London, and we learned that the two is the subway in London, and the registers don't stand in line, they cue; and you wonder what that has to do with this case?(Exhibit U, R.T. 2/22/11 at 124-125.) 3. State Court Ruling
Well, I think you all know what it has to do about this case now, and you'll get to know more. About what that has to do with this case because the jury instructions, the ones that the judge just read to you, have many instances where the judge is ordering you to follow the law, and the law is contained in those jury instructions.
I've highlighted a few of them. I hope you can see them; and, basically, what these jury instructions tell you, the bottom line is don't be Lord Baltimore. Don't be the guy jumping from one conclusion to the next to the next to the next and then determining a final result. Your job is to take the evidence that you heard here in this courtroom, and only the evidence that you heard here in this courtroom, and then come up with a decision. A really difficult thing to do, I know, but that's your job.
In disposing of this claim in Petitioner's PCR proceeding, the Arizona Court of Appeals reasoned:
Abdin next challenges counsel's opening statement, in which he told "a joke about Lord Baltimore," rather than discussing the evidence he expected to present at trial. Abdin asserts that no reasoned trial strategy supports counsel's conduct, particularly in light of evidence he maintains counsel should have shared with the jury, to wit, that Abdin had "cooperated" with the police to locate the stolen vehicle and had not "intend[ed]" to possess the weapons. The state argued, inter alia, that counsel's opening statement was based on trial strategy, and that the Lord Baltimore story offered a
"moral"- not to "jump to conclusions," which counsel referred to again in his closing argument.(Exhibit S, Mem. Dec. 5/31/16 at ¶¶ 10-11.) 4. Application of Law
"Matters of trial strategy and tactics are committed to defense counsel's judgment .... " State v. Beaty, 158 Ariz. 232, 250, 62 P.2d 519, 537 (1988). "Actions which appear to be a choice of trial tactics will not support an allegation of ineffective assistance 6f counsel." State v. Espinosa-Gamez, 139 Ariz. 415, 421, 678 P.2d 1379, 85 (1984). To the extent the trial court adopted the state's reasoning that counsel's opening argument was based on reasonable trial strategy, our review of the record supports this reasoning. Moreover, in his petition below, Abdin himself acknowledged that "defense counsel's telling a joke instead of making a substantive opening statement in and of itself may not be ineffective."
Respondents argue there is no constitutional right to an opening statement. See e.g. Herring v. New York, 422 U.S. 853, 863 n. 13 (1975) ("Nothing said in this opinion [about a right to closing arguments] is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process."); and United States v. Salovitz, 701 F.2d 17 (2d Cir.1983) (finding no constitutional right to opening statement). To the extent that is true, it does not establish that "[t]here can be no merit to this claim." (Answer, Doc. 14 at 24.) Under the Arizona Rules, Petitioner had a right to an opening statement. See Ariz. R. Crim. Proc. 19.1(a)(3) ("defendant may then make an opening statement").
Instead, the pertinent question is whether counsel was constitutionally ineffective in taking advantage of that right.
On the other hand, few elements of a criminal trial call for the exercise of tactical judgment more than an opening statement.
It is common knowledge that defense counsel quite often waive openings as a simple matter of trial strategy. Such a waiver has been held to be "trivial", a "tactical decision", a "matter of professional judgment", "particularly within the realm of trial strategy", and ordinarily will not form the basis for a claim of ineffective assistance of counsel.Salovitz, 701 F.2d at 20-21. "The timing of an opening statement, and even the decision whether to make one at all, is ordinarily a mere matter of trial tactics and in such cases will not constitute the incompetence basis for a claim of ineffective assistance of counsel." United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985). Counsel has wide latitude in what to present in an opening statement. See e.g. Wallace v. Lockhart, 701 F.2d 719, 726 (8th Cir. 1983) ("attempt to introduce the concept of false imprisonment as an alternative to the kidnapping charge was a reasonable tactical decision"); and Hardwick v. Pierce, 148 F. Supp. 3d 338, 357 (D. Del. 2015) (counsel not ineffective for telling the jury he would not tell them what the evidence would be).
Here, counsel's opening statement was plainly intended to focus the jury on the multiple implications purportedly necessary to establish guilt from the prosecution's circumstantial evidence. The use of the story was a reasonable tactical device, establishing a memorable short hand theme to address the circumstantial nature of the prosecution's case.
In summary, great trial themes have universal application and appeal. They send compelling messages by permitting jurors to use their own personal frames of reference, their own sense of morality and justice. Stories catch the jurors' interest. Themes compel them to look at the case from your point of view, motivate them to convert their preferences to choices and their choices to a verdict loudly voiced in the jury room.Gianna and Marcy, Opening Statements § 9:14, Implanting Themes. Moreover, leaving the jury to ponder the purpose of the story at opening could have reasonably been seen as more effective than simply making the point directly, which arguably could have lended credence to the prosecution's case by reiterating and emphasizing the evidence. See id. at § 12:8, The Defense-Offense "Gumbo" (contrasting "building up the defendant's own case" with "reiterating the plaintiff's"); and id. at § 4.5, Real Persuasion and Where it Comes From (jurors "will listen and befriend you when they realize that you are going to tell them a story, that you trust them to think for themselves").
Accordingly, Petitioner fails to overcome the presumption that trial counsel's opening statement was reasonable trial strategy.
Moreover, in light of trial counsel's closing arguments, and the weight of the evidence against Petitioner and limited evidence to support his assertions of innocence, the undersigned cannot find that the outcome of trial would have been different had counsel made specific statements concerning the evidence in his opening statement.
Accordingly, Petitioner's claim of ineffectiveness with regard to the opening statement is without merit.
Even if the undersigned could conclude otherwise on this claim, Petitioner proffers no basis on which this Court could conclude that a contrary determination by the Arizona Court of Appeals was an unreasonable determination of the facts or an unreasonable application of or contrary to Supreme Court law.
Accordingly, Ground Four is without merit and must be denied. F. GROUND 5 - IAC RE LESSER INCLUDED OFFENSE 1. Parties Arguments
In Ground Five, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel advised him to waive the "lesser included offense instructions to the jury" on the theft charge. (Amended Petition, Doc. 5 at 10.)
Respondents argue that Petitioner admits the choice was a trial tactic, and fails to explain what lesser included offense would have applied, or how the jury would have found it supported by the evidence. Respondents further argued that Petitioner fails to show how the evidence would have supported a conviction for "use of means of transportation" (which requires a finding of no intent to permanently deprive the owner of the vehicle) in light of his defense that he had unwittingly purchased the vehicle. (Answer, Doc. 14 at 25-27.)
Petitioner does not reply. 2. Factual Background
At trial, as the parties discussed jury instructions the following occurred:
THE COURT: All right. Thank you.
We'll show that on the record.
Let's go through these instructions -- oh, the lesser included, the state didn't want it, and the defense no longer wants it?(Exhibit U, R.T. 2/22/11 at 86-87.) 3. State Court Ruling
MR. FISHER: (Shakes head.)
THE COURT: Okay. Let's do this before we get to anything else.
Okay. No, do not want a lesser included.
* * *
Next, I have rewritten Number 17 to take out the lesser included.
In disposing of this claim, the Arizona Court of Appeals reasoned:
Finally, Abdin argues counsel should not have waived the giving of a lesser-included-offense instruction, asserting without factual or legal support that "it is reasonably probable that the jury would have returned a verdict for a lesser offense based on the evidence and not convicted Petitioner on theft of means." As the state correctly noted in its response below, Abdin "does not state what [the] lesser-included offense would have been and he fails to explain how the jury would have found such a lesser-included offense." Unsupported speculation is not sufficient to warrant an evidentiary hearing. Abdin has failed to establish the trial court abused its discretion in summarily dismissing this claim.(Exhibit S, Mem. Dec. 5/31/16 at ¶ 12 (citations omitted).) 4. Application of Law
At the outset, Petitioner fails to explain why advising him to waive a lesser-included-offense instruction was not a reasonable trial tactic. Such a position is neither irrational nor unprecedented. Defendants with some regularity take an all-or-nothing approach, gambling that if the jury is faced with only the option of the greater offense they will acquit, while if given the option of lesser offenses they may compromise by convicting on the lesser offense. See e.g. Miller v. Nooth, 403 Fed. Appx. 291, 292 (9th Cir. 2010) (counsel and defendant "jointly made a strategic decision to pursue an 'all-or-nothing' approach"); Hooks v. Ward, 184 F.3d 1206, 1234 (10th Cir. 1999) ("in the context of instructions on lesser included offenses, we see particular strategy reasons why a defendant might not want to present the jury with a compromise opportunity"). See also Pflaum, Justice Is Not All or Nothing: Preserving the Integrity of Criminal Trials Through the Statutory Abolition of the All-or-Nothing Doctrine, 73 U. Colo. L. Rev. 289, 301 (2002) ("Thus, the All-or-Nothing Doctrine can be an extremely effective strategy for an accused in a trial where the prosecution might have difficulty in proving the accused's guilt beyond a reasonable doubt.."). See also Carpenter, The All-or-Nothing Doctrine in Criminal Cases: Independent Trial Strategy or Gamesmanship Gone Awry?, 26 Am. J. Crim. L. 257, 258 (1999) ("Because of the nature of the gamble, the [all-or-nothing] doctrine [on lesser-included-offense instructions] conjures up images of a smoked filled room and the high stakes roll of the dice, as trial participants seek either an outright acquittal or conviction on the highest charge sought."). Such an approach may be a gambling man's decision, but some very rational men are gamblers. And, Petitioner proffers nothing to suggest that counsel did not adequately advise him on the risks of the tactic.
Moreover, as argued by Respondents, Petitioner fails to suggest what the lesser-included-offense would have been. As pointed out by Respondents, the "use of means of transportation" under Ariz. Rev. Stat. § 13-1803(a), requires use "without intent permanently to deprive." Petitioner's theory of the case was that he had innocently purchased the trailer. Purchasing a trailer is inconsistent with only temporarily depriving the other person of the trailer.
Accordingly, the undersigned can find neither deficient performance nor prejudice from any advice to Petitioner to waive a lesser-included-offense instruction.
Even if the undersigned could conclude otherwise on this claim, Petitioner proffers no basis on which this Court could conclude that a contrary determination by the Arizona Court of Appeals was an unreasonable determination of the facts or an unreasonable application of or contrary to Supreme Court law.
Accordingly, Ground Four is without merit and must be denied. G. SUMMARY
Based upon the foregoing, the undersigned concludes that each of Petitioner's grounds for relief are without merit. Therefore the Petition should be denied.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA 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." Id.
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be on the merits. Under the reasoning set forth herein, jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Petitioner's Amended Petition for Writ of Habeas Corpus, filed July 5, 2016 (Doc. 5) be DENIED.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant / / / / / / to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Dated: March 28, 2017
/s/_________
James F. Metcalf
United States Magistrate Judge 16-2003r RR 17 03 15 on HC.docx