Opinion
CV 21-08179-PCT-SPL (MHB)
02-01-2022
Aaron Shane Aulbach, Petitioner, v. State of Arizona, et al., Respondents.
ORDER
Honorable Michelle H. Burns United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT COURT:
Petitioner Aaron Shane Aulbach, who is confined in the Red Rock Correctional Center in Eloy, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 7). Petitioner has not filed a reply.
BACKGROUND
Petitioner was convicted by jury trial in Coconino County Superior Court, case #CR2015-00045, of unlawful flight, aggravated assault, resisting arrest, driving under the influence, and driving under the influence of drugs. (Doc. 7, Exhs. F, G; Doc. 5.) He was sentenced to a 15.75-year term of imprisonment. (Doc. 7, Exh. G.)
The Arizona Court of Appeals described the facts of the case, as follows:
¶ 3 In January 2015, after observing Aulbach commit civil traffic violations while driving a Mazda pickup, and learning that Aulbach's driver's license was suspended, Sergeant Jamison conducted a traffic stop. Aulbach refused to give Jamison his license and denied that it was suspended. Aulbach then “took off” in his pickup.1
¶ 4 Jamison retreated to his police vehicle, activated the vehicle's siren (the emergency lights were already on), and pursued Aulbach for over 10 miles. Traveling between 65 and 75 miles per hour in a 75 mile per hour zone, Aulbach avoided spike strips deployed by other law enforcement officers, and then pulled off the highway into the forest. Aulbach's pickup became stuck, at which time he exited his vehicle, rushed toward Jamison, and shot five to six-foot flames toward Jamison using a lighter and a can of carburetor cleaner.
¶ 5 Jamison unholstered his taser, pointed it at the approaching Aulbach, and yelled at him to stop. Aulbach retreated to his pickup and “rummag[ed] around” inside of it, which caused Jamison to deploy his service weapon because he was “very concerned that there may be something else in the vehicle, ” such as a firearm. Yelling at Jamison and other officers who had arrived, and refusing to follow their commands, Aulbach threw a small object at Jamison and attempted to free his pickup, revving the engine and spinning the wheels for several minutes. At one point, Aulbach retrieved food and water from the back of his pickup and started eating a sandwich.
¶ 6 Officers approached Aulbach's pickup and breached the passenger window in an attempt to gain control over him, but he resisted, fought, and kicked at the officers. After Aulbach was eventually placed in custody, Jamison attempted to conduct a DUI investigation at the detention facility but Aulbach refused. Regardless, Jamison and Sergeant Seay observed signs of drug use. The officers obtained a search warrant and collected a sample of Aulbach's blood, which contained about 41 ng/ml of amphetamine and 350 ng/ml of methamphetamine.
¶ 7 The State charged Aulbach with unlawful flight from a pursuing law enforcement vehicle, a class 5 felony; aggravated assault on a peace officer, a class 2 felony; resisting arrest, a class 6 felony; and two counts of DUI, class 1 misdemeanors.[] Initially found incompetent to stand trial, Aulbach received involuntary mental health treatment until the court found him “capable of assisting counsel at trial.” In October 2016, Aulbach proceeded to trial and was found guilty as charged (except, of course, the dismissed aggravated DUI charges). The court sentenced Aulbach to time served on his misdemeanor charges and to concurrent, presumptive terms on his felony charges, which amounted to 15.75 years' imprisonment.State v. Aulbach, 2018 WL 2355293 (Ariz.Ct.App. May 24, 2018). 2
Petitioner filed his notice of appeal on December 13, 2016, and counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), on April 12, 2017. (Exhs. H, I.) On September 15, 2017, Petitioner filed a pro se supplemental brief alleging the following claims: “(1) he ‘objects to being required to proceed pro se'; (2) counsel's performance was deficient; (3) he ‘has been constructively denied counsel on appeal' because of appellate counsel's conduct and because ‘he is denied access to a law library' and to someone who can provide legal assistance; (4) the superior court, the State, and counsel focused on various issues irrelevant to the case; (5) the State improperly ‘continued to advocate to the jury that [his] driver's license was suspended'; (6) the court erred when it dismissed his aggravated DUI charge and recharged him with misdemeanor DUI without a complaint, information, or indictment; and (7) there was insufficient evidence to convict him of DUI.” Aulbach, 2018 WL 2355293.
On May 24, 2018, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. See Aulbach, 2018 WL 2355293.
Petitioner filed a timely notice of post-conviction relief (“PCR”), and on June 7, 2019, through counsel, Petitioner filed a PCR petition asserting three claims of ineffective assistance of counsel (“IAC”). (Exhs. L, M, N, O, R.) Specifically, Petitioner alleged (1) trial counsel was ineffective for “prematurely” disclosing a copy of his valid driver's license to the state; (2) trial counsel was ineffective for his failure to object to the State's closing argument referencing his driver's license being suspended; and (3) appellate counsel was ineffective because he had a conflict of interest due to his single appearance at a pretrial conference and due to the fact that he filed an Anders brief. (Exhs. O, R.)
On November 18, 2019, the trial court denied Petitioner's PCR petition. (Exh. R.) On March 13, 2020, after having been granted an extension of time, Petitioner filed a timely petition for review with the Arizona Court of Appeals. (Exhs. S, T.) In his petition for review, Petitioner raised the same IAC arguments raised in his PCR petition, as well as, three new IAC claims alleging that trial counsel was ineffective for failing to raise an entrapment defense; counsel was ineffective “for failing to object after [the] publication of 3 [his] driver's license”; and counsel was ineffective “for allowing trial to begin before [a] Rule 20 motion was granted.” (Exh. T.) On June 30, 2020, the Court of Appeals denied relief, finding that the trial court did not abuse its discretion when it denied his PCR petition. (Exh. W.) The mandate issued August 11, 2020. (Exh. X.)
In his habeas petition, Petitioner raises several grounds for relief. Petitioner contends his trial counsel was ineffective for failing to immediately object or move for a mistrial during the state's closing argument, when the state presented a slide that stated that Petitioner's driver's license had been suspended. Petitioner asserts he received ineffective assistance of appellate counsel due to an alleged conflict of interest, apparently stemming from the fact that appellate counsel appeared as coverage counsel at a pretrial conference. Petitioner also asserts that appellate counsel was ineffective for prematurely disclosing evidence at that pretrial conference. Lastly, Petitioner alleges that his right to present evidence was “arbitrarily denied”; his right to confront witnesses was violated; and trial counsel was ineffective for failing to raise an entrapment defense at trial.
Petitioner also asserted as a ground for relief that he had in his possession a valid Arizona driver's license, but the Motor Vehicles Department did not notify Petitioner that his license was suspended until January 18, 2015, four days after his arrest. The Court, however, dismissed this claim for failing to allege any statement that he is in custody in violation of the Constitution or the laws or treaties of the United States. (Doc. 5.)
In their Answer, Respondents argue that Petitioner's claims are procedurally defaulted, or meritless.
DISCUSSION
A. Standards of Review
1. Merits
Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) 4 (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson, 360 F.3d at 1055.
Antiterrorism and Effective Death Penalty Act of 1996.
A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
2. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal 5 legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).
A “general appeal to a constitutional guarantee, ” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
Even when a claim's federal basis is “self-evident, ” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim” to discover implicit federal claim).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained: 6
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is 7 a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1, 32.2(a), 33.1, 33.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4 and 33.4 (time bar). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see 8 also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable “cause” for a petitioner's failure to fairly present his claim. Regarding the “miscarriage of justice, ” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”). 9
B. Claims alleging that his right to present evidence was “arbitrarily denied”; his right to confront witnesses was violated; and trial counsel was ineffective for failing to raise an entrapment defense at trial.
In his habeas petition and attachment, Petitioner alleges the following claims: (1) “right to present evidence may not be arbitrarily denied”; (2) “confront witnesses, right at trial”; and (3) “entrapment defense, failed to present” (Doc. 1 at 12; Doc. 1-1.) In each of these claims, Petitioner has failed to identify a specific constitutional right. Liberally construing the habeas petition, however, Petitioner appears to be asserting a due process claim, a Confrontation Clause claim, and an ineffective assistance of counsel claim for allegedly failing to raise an entrapment defense.
The record reflects that Petitioner never raised any of these specific claims on direct appeal or in both his PCR petition and petition for review to the Arizona Court of Appeals. See Aulbach, 2018 WL 2355293; (Exhs. L, N, O, R, T, W.) As such, Petitioner failed to fairly present these claims. Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 32.2(a), 32.4.
Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner has not established, much less argued, that any exception to procedural default applies. And, his status as an inmate, lack of legal knowledge, and limited legal resources do not establish cause to excuse the procedural default. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.
Further, Petitioner has also not established a fundamental miscarriage of justice. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a “fundamental 10 miscarriage of justice.” Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is “demanding.” House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial.” Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner “must demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a ‘miscarriage of justice.'” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327. In his habeas petition, Petitioner argues the merits of his claims and he has failed to file a reply to Respondents' Answer. Petitioner fails to present any new reliable evidence establishing a miscarriage of justice and, thus, cannot excuse his procedural default on this basis.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created a “narrow exception” to the principle that “an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Id. The Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id.
“Cause” is established under Martinez when: (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an 11 “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).
The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert “cause” to overcome the procedural bar based on attorney error that occurred in “appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Id. at 16.
To the extent Petitioner alleges that trial counsel was ineffective for failing to raise an entrapment defense at trial, Petitioner has not demonstrated a “substantial” claim. A “substantial” claim “has some merit.” Id. at 14. Like the standard for issuing a certificate of appealability, to establish a “substantial” claim, a petitioner must demonstrate that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (internal quotations omitted). In other words, a claim is “‘insubstantial' if it does not have any merit or is wholly without factual support.” Id. Determining whether an ineffective assistance of counsel claim is “substantial” requires a district court to examine the claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See Id. at 687-88. To establish deficient performance, a petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Id. at 699. A 12 petitioner's allegations and supporting evidence must withstand the court's “highly deferential” scrutiny of counsel's performance, and overcome the “strong presumption” that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90. A petitioner bears the burden of showing that counsel's assistance was “neither reasonable nor the result of sound trial strategy, ” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that “‘might be considered sound trial strategy'” do not constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, a petitioner must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the possibility that a petitioner suffered prejudice is insufficient to establish Strickland's prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (“[A petitioner] must ‘affirmatively prove prejudice.' ... This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him.”) (quoting Strickland, 466 U.S. at 693). However, the court need not determine whether counsel's performance was deficient if the court can reject the claim of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the court may proceed directly to the prejudice prong).
In support of his claim, Petitioner states that “with all documentation present this is in fact evidence of entrapment []: the state or condition of being entrapped by a government agent (as an officer or informant). In this case a government agency ‘department of motor vehicles.' For this givin fact Petitioner feels he deserves a new trial.”
Having reviewed Petitioner's habeas petition and attachment, the Court finds that Petitioner has failed to establish a substantial claim of ineffective assistance of counsel for 13 counsel's failure to raise a defense -- claiming that Petitioner was entrapped by the Department of Motor Vehicles. Petitioner relies solely on an unsupported narrative account of “facts” as well as copies of documents presumably taken from the state court record that either have no relevance or make little sense. This is clearly insufficient. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (finding petitioner's “cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief.”); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (conclusory allegations of ineffective assistance do not warrant relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same). Thus, Petitioner has not demonstrated cause for his procedural default of any ineffective assistance of counsel claim under Martinez.
C. Claim alleging trial counsel was ineffective for failing to immediately object or move for a mistrial during the state's closing argument, when the state presented a slide that stated that Petitioner's driver's license had been suspended.
In his next claim, Petitioner alleges that his trial attorney was ineffective for failing to object to the State's closing argument or move for a mistrial when the State presented a slide stating that Petitioner's driver's license was suspended. (Doc. 1 at 7.) Petitioner fails to develop his argument; rather, he summarily asserts counsel was ineffective, stating:
During closing arguement, Mr. Ruckensky put on display on video screen “drivers license suspended.” A definitive and inaccurate message to the jurors. No. objection or motion for mistrial was made by defense attorney Gavin O'Conner. This bold message displayed by State prosecutor for Petitioners jurors to visualize right before deliberations was plainly in intentional error to have jurors second guess all work that had been done by Petitioners defense attorney … . When Petitioner asked defense attorney Gavin O'Connor, “are you going to say anything?” Gavin O'Connor responded “It's a appealable issue, don't worry about that right now.” … Ineffective assistance of defense attorney is in fact not addressing issues such as this immediately … Petitioner was a victim of prejudice as a direct result … .(Doc. 1-1 at 28-29.)
Construed liberally, Petitioner presented the same ineffective assistance of counsel claim in his PCR proceedings. In denying the claim, the state court stated: 14
The PCR also alleges that Petitioner/Defendant's trial counsel was ineffective for not objecting immediately, or moving for a mistrial, when the State presented a slide during its closing argument that stated: “Driver's License Suspended.” Petitioner/Defendant also alleges that he was prejudiced as a result of the State displaying said slide during its closing argument.
However, in the Arizona Court of Appeals' Memorandum Decision, filed on May 24 2018, regarding the subject cases, at paragraph 11, the Court stated:
We also reject Aulbach's fifth argument. The jury was properly allowed to consider evidence and arguments relating to Aulbach's alleged suspended license because the State's casein-chief proceeded on the aggravated DUI charges, which required the State to prove his driver's license was suspended. See Ariz. Rev. Stat. (“A.R.S.”) § 28-1383(A)(1). Only after the State rested and Aulbach's subsequent Rule 20 motion was granted were the aggravated DUI charges dismissed. The court then ruled that the State was allowed to argue that the officer stopping Aulbach had information that his license was suspended. There is no reason to suppose the court erred, especially when the allegation of a suspended license was highly relevant to the incidents surrounding the traffic stop and there is no indication this evidence was prejudicial, misleading, or confusing unlike Aulbach seems to suggest. See Ariz. R. Evid. 401-403. Moreover, Aulbach relied on the evidence he now challenges. After dismissal of the aggravated DUI charges, he testified about his suspended license, his disagreement with Jamison over the status of his license, and why he believed his license was still valid. []
The PCR does not establish that the Petitioner/Defendant's trial counsel was deficient for not objecting immediately, or moving for a mistrial, when the State presented a slide during its closing argument that stated: “Driver's License Suspended.” Moreover, Petitioner/Defendant has also failed to establish that he was prejudiced as a result of the State displaying said slide during its closing argument. Therefore, the PCR fails to state a colorable claim of ineffective assistance of counsel regarding said issue.(Exh. R) (Emphasis omitted.) The Court of Appeals granted review but summarily denied relief. (Exh. W.)
Although “[t]he right to effective assistance extends to closing arguments, ” 15 Yarborough v. Gentry, 540 U.S. 1, 5 (2003), failure to object during a closing summation generally does not constitute deficient performance. “[A]bsent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (internal quotation marks omitted).
The record reflects that after the State rested and Petitioner's Rule 20 motion was granted, which dismissed the aggravated DUI counts, the trial court ruled that the State was allowed to argue that the officer stopping Petitioner had information demonstrating that Petitioner's driver's license was suspended. (Exh. AA at 22-23.) Thus, given that the trial court had just expressly ruled that the State could argue that the officer had information showing Petitioner's license was suspended, counsel's decision not to immediately object to the State's closing argument or move for a mistrial was objectively reasonable.
Further, as noted above, in denying this same claim on PCR review, the court specifically quoted from the Arizona Court of Appeals' decision addressing the merits of the underlying claim of whether the jury was improperly allowed to consider evidence and arguments relating to Petitioner's suspended license. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (explaining that the merits of the underlying claim “control the resolution of the Strickland claim because trial counsel cannot have been ineffective for failing to raise a meritless objection”). In rejecting the claim, the Court of Appeals found that “the allegation of a suspended license was highly relevant to the incidents surrounding the traffic stop and there is no indication this evidence was prejudicial, misleading, or confusing … .” Aulbach, 2018 WL 2355293. The court also found that Petitioner “testified about his suspended license, his disagreement with [the officer who stopped him] over the status of his license, and why he believed his license was still valid.” Id.; (Exh. AA at 33-35, 44, 52-53.)
Accordingly, finding that any objection or motion for a mistrial would have been overruled or denied based on the trial court's earlier ruling, the Court finds that Petitioner has failed to demonstrate ineffective assistance of counsel for failing to immediately object 16 or move for a mistrial during the state's closing argument. See Juan H., 408 F.3d at 1273 (explaining that the merits of the underlying claim “control the resolution of the Strickland claim because trial counsel cannot have been ineffective for failing to raise a meritless objection”); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does not constitute ineffective assistance.”). The Court finds that the state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.
D. Claim alleging ineffective assistance of appellate counsel due to an alleged conflict of interest, apparently stemming from the fact that appellate counsel appeared as coverage counsel at a pretrial conference. Petitioner also asserts that appellate counsel was ineffective for prematurely disclosing evidence at that pretrial conference.
Lastly, Petitioner asserts a claim of ineffective assistance of appellate counsel due to an alleged conflict of interest when his appellate counsel appeared at a pretrial conference and prematurely disclosed evidence to the State that jeopardized his trial. (Doc. 1 at 8.) Petitioner states that “Brad Bransky steped in on December 1st 2015. To make sure the driver's license was disclosed to the State with Petitioner's consent to do so at a case management conference for a Rule 11 evaluation program, that Petitioner was sent to so the court could prove he was in fact competent to stand trial. … Petitioner had not given [] Brad Bransky permission to disclose the information, evidence, valid Arizona driver's license to the State.” (Doc. 1-1 at 24-25.)
Construed liberally, Petitioner presented a similar ineffective assistance of appellate counsel claim due to a conflict of interest in his PCR proceedings. In denying the claim, the state court stated: 17
In the PCR, Petitioner/Defendant contends that appellate counsel had a conflict because he “actually appeared in the trial court in an important pre-trial hearing as the trial attorney, and addressed substantive issues, like disclosure and the Rule 11 proceedings.” This Court reviewed the minute entry from the subject Status Conference held on December 1, 2015. Mr. Bransky appeared for Petitioner/Defendant's counsel, Ms. Steinlage, at the hearing, and said minute entry states that the Court and counsel discussed the Court's prior finding, based on Dr. Linskey's report, committing the Defendant for competency restoration, and the Court affirmed said order at the status conference. Mr. Bransky did not appear as trial counsel at said status conference, nor were substantive issues discussed at said status conference, based on the record set forth in the PCR.
Petitioner/Defendant contends in the PCR that Mr. Bransky's conduct in representing the Petitioner/Defendant in his appeal, after appearing for his defense attorney at a status conference, as well as the fact that he works in the same office as Petitioner/Defendant's trial counsel, presents “an appearance of impropriety and a conflict of interest.” The PCR also asserts that given these facts, “it cannot be said that the Petitioner received effective assistance of appellate counsel.” The PCR also states that “effective assistance of counsel required that an impartial appellate counsel review and appropriately present issues to an impartial tribunal, and that it was ineffective not to.”
* * *
The Defendant/Petitioner has failed to establish any deficient performance by his appellate attorney, and he has also failed to show any prejudice based on appellate counsel's representation.(Exh. R.)
Under the Sixth Amendment, when “a constitutional right to counsel exists, ... there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth Amendment violation based on a conflict of interest, the defendant “must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). An “actual conflict” means “a conflict of interest that adversely affects counsel's performance, ” not simply a “theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 172 n.5 (2002). When a defendant makes this showing, the court presumes 18 prejudice because the “assistance of counsel has been denied entirely or during a critical stage of the proceeding.” Id. at 166; Sullivan, 446 U.S. at 349-50.
The issue is whether there existed a “conflict that affected counsel's performance- as opposed to a mere theoretical division of loyalties.” Mickens, 535 U.S. at 171. To make this showing, “[the petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.” Foote v. Del Papa, 492 F.3d 1026, 1029-30 (9th Cir. 2007) (alteration in original) (quoting Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006)); see also McClure v. Thompson, 323 F.3d 1233, 1248 (9th Cir. 2003) (noting that to establish an adverse effect, a defendant “must demonstrate that his attorney made a choice between possible alternative courses of action that impermissibly favored an interest in competition with those of the client”).
Beyond his conclusory statements, Petitioner fails to articulate how Mr. Bransky's single appearance at a non-substantive pretrial conference nearly a year before his trial began created a conflict of interest. See Greenway, 653 F.3d at 804 (finding petitioner's “cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief.”); Jones, 66 F.3d at 204 (conclusory allegations of ineffective assistance do not warrant relief); James, 24 F.3d at 26 (same). Petitioner fails to assert any alternative issue, defense strategy or tactic that might have been pursued but was not due to counsel's other loyalties or interests.
Petitioner next claims that appellate counsel jeopardized his trial by prematurely disclosing his driver's license to the State at the same pretrial conference mentioned above. The PCR court addressed and denied a similar claim stating, in pertinent part:
The Defendant/Petitioner has failed to allege any specific facts, other than trial counsel's disclosure of the Defendant/Petitioner's driver's license, which would allow a Court to meaningfully assess why the alleged deficiency was material.19
In order to satisfy the second prong, Petitioner/Defendant must demonstrate he was prejudiced by trial counsel's alleged deficient performance. The Petitioner/Defendant has also failed to state or establish how he was prejudiced by his attorney's disclosure of his driver's license. In this regard, for the State to prevail at trial on the Aggravated DUI charges, it would have to prove beyond a reasonable doubt that the Defendant/Petitioner's privilege to drive was suspended, cancelled or revoked at the time of his subject driving. As such, the State would have to obtain a certified copy of the Defendant's Arizona MVD records to prove the status of the Defendant/Petitioner's privilege to drive in the state of Arizona at the time of the traffic stop and the subject driving. As such, records would have put the State on notice of the Defendant/Petitioner's driving privileges even without defense counsel disclosing the Defendant/Petitioner's driver's license to the State.(Exh. R.)
Initially, the Court notes that in his PCR petition, it appears that Petitioner originally complained that his attorney did not have his driver's license at an earlier hearing, indicating that Petitioner wanted the information disclosed to the State. (Exh. O.) Further, pursuant to the Arizona Rules of Criminal Procedure 15.2, defendants are obligated to disclose evidence they intend to use at trial. Ariz.R.Crim.P. 15.2(b), (c)(3). Thus, counsel's disclosure of Petitioner's valid driver's license was required under Arizona law if Petitioner intended to offer it as an exhibit in support of his defenses. Lastly, as the PCR court addressed, “the State would have [had] to obtain a certified copy of [Petitioner's] Arizona MVD records to prove the status of [his] privilege to drive … at the time of the traffic stop” in order to prove the aggravated DUI charges. Those “records would have put the State on notice of [Petitioner's] driving privileges even without defense counsel disclosing” Petitioner's license. (Exh. R.) The record demonstrates that the State did, in fact, introduce a certified copy of Petitioner's MVD records at trial. (Exh. Z at 89-93.)
In sum, the Court finds that Petitioner has failed to establish ineffective assistance of appellate counsel due to an alleged conflict of interest or by prematurely disclosing his driver's license to the State. The Court finds that the state court's denial of these claims was neither contrary to, nor did it involve an unreasonable application of, clearly 20 established Federal law, nor based on an unreasonable determination of facts.
CONCLUSION
Having determined that Petitioner's claims are procedurally defaulted without an excuse or meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to 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 timely to 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 21 or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure. 22