Opinion
CV 20-01083 PHX ROS (CDB)
06-11-2021
Leo Begay, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROSLYN O. SILVER:
Petitioner Leo Begay seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition Begay challenges his conviction on two counts of aggravated driving while under the influence, resulting in concurrent sentences of 10 years' imprisonment. (ECF No. 1). Respondents have answered the petition and Begay has filed a reply (ECF Nos. 13 & 14).
I. Background
The following is taken from the Arizona Court of Appeals' decision denying Begay's appeal:
As Phoenix Police Department officers responded to a call in the parking lot of an apartment complex, Begay drove a vehicle into the same parking lot. Begay parked the vehicle at an angle, adjacent to where officers were standing. Appellant staggered as he exited the vehicle from the driver-side door. Officers testified that Appellant had watery and bloodshot eyes, slurred his speech, continued to stagger as he walked, and had an odor of alcohol.
Appellant agreed to field sobriety tests but declined a breathalyzer test. After Appellant failed field sobriety tests, he was arrested.
An officer brought Appellant to a mobile unit designed for the investigation of crimes involving driving under the influence of alcohol (“DUI van”), where another officer completed an implied consent form and read Appellant his Miranda rights. There officers determined Appellant's driver's license was revoked. While an officer read Appellant his Miranda rights, Appellant interrupted him, stating, “[c]an I have an attorney here for the blood draw?” The officer finished reading the Miranda rights and explained to Appellant he could use a phone book and cell phone to call an attorney, which were both accessible in the DUI van.
Appellant did not call an attorney at any time, even after the officer encouraged him to do so. Appellant then gave his verbal and written consent to the blood draw, but as the officer started to prepare for the blood draw procedure, Appellant recanted his consent. The officers obtained a search warrant, served Appellant with the same and drew Appellant's blood. After drawing Appellant's blood, the officer told Appellant he had the right to have an independent sample tested and explained that procedure.
Before trial, Appellant requested to waive his right to counsel. The court held a hearing and found that Appellant knowingly, intelligently and voluntarily waived his right to counsel, accepted the waiver, and appointed advisory counsel.
The superior court held an evidentiary hearing on Appellant's motion on right to counsel during the blood draw and denied the motion. The court
heard testimony from the Phoenix police officer who administered the blood draw in the DUI van, and argument from Appellant on his motion.State v. Begay, 2019 WL 3178782, at *1-2 (Ariz.Ct.App. July 16, 2019).
In his federal habeas petition Begay asserts he “was taken into custody for suspicion of DUI after he had refused a field sobriety test and the breath analyzer test.” (ECF No. 1 at 18).
At Begay's trial a City of Phoenix Crime Lab toxicologist testified that Begay's blood alcohol content at the time of the blood draw was .179, with a plus or minus of .009. (ECF No. 13-1 at 518-19).
On October 19, 2016, prior to asserting his Faretta rights, Begay filed a pro se motion for substitution of counsel (ECF No. 13-1 at 18), which was granted. On February 13, 2017 his substituted counsel filed a motion to withdraw, stating: “Counsel and the Defendant have a fundamental disagreement as to the implementation of the defense's theory of the case and trial strategies and the presentation of material items of evidence, ” and that “there has been a communication breakdown between the attorney and client, where the client is unable to assist in his own defense.” (ECF No. 13-1 at 30-31).
Begay asserted his Sixth Amendment right to “have the assistance of counsel for his defense” was violated, and sought “dismissal of prosecution.” (ECF No. 13-1 at 37). Begay asserted he “was denied counsel and prevented from collecting exculpatory evidence which is no longer available.” (ECF No. 13-1 at 38). In a subsequent motion Begay sought an evidentiary hearing and again sought “dismissal of prosecution.” (ECF No. 13-1 at 42-45). The transcript of the evidentiary hearing is at ECF No. 13-1 at 415-542.
Begay testified at his trial, questioned by his advisory counsel. (ECF No. 13-1 at 566-71). He testified:
Well, me and my girlfriend Maria, we got in an argument and we were drinking. So I took the keys from her and I told her I was going to take off with the car. So I took off and I walked out. And but instead of taking the car I just walked to Circle K. I got me a can of 211 Steel Reserve [a malt liquor with a relatively high alcohol content] and I got on the -- by the frontage road and I was sitting by the wall and I drank that can.(ECF No. 13-1 at 566-67).
Begay testified he then went to get another beverage but realized he didn't have enough money to purchase one, so he
. . . went back to the car and I opened the door. I got in. And I was digging around for change. While I was doing that I seen another car pull up two spots over. So by that time I got out. And I closed the door. Locked the door. And I said, oh, I'm going to ask Maria to pick me up some more.(ECF No. 13-1 at 567). As Begay walked toward where his girlfriend was sitting near two police officers,
. . . one of the officers stepped up and he confronted me and he asked me, what's your name? And I said Leo Begay. And then he says, I need to ask you some questions.
And so I said, why? And he's like, we're doing -- conducting a domestic violence investigation and ask you some questions. So I said okay. And he starts let's walk over this way away from the investigation. I said all right.
So while he was leading me away he asked me, what's going on? And I told him it's difficult to live with her. And I told him I'm drinking and I'm drunk. And then we got to the police unit and he asked me, did you drive? And I said, yeah, I drove. And so that was it. And then he says okay.
And then he told me I'm going to place you inside the police unit while we conduct this investigation. So he handcuffed me and put me in back of the car. And I sat in the back and like time went by. And Officer Dennis came over, opened the door and he says, you're under arrest for DUI. And I said, what? And he said, you're under arrest for DUI. And he closes the door. And I'm just thinking, why am I getting arrested for a DUI?
So time -- more time went by and Officer Friday came back. He got me out of the police car and I guess that's when Officer Lopez arrived. And he uncuffed my hands. And he told me they're going to do a test on me. And I said, why? I said I told him I didn't drive. I didn't drink and drive. And he says well, the officers says they seen you drive. So I said no, I didn't. So he said, well, if you take this test and if you pass it, you don't have to be charged with DUI. So I let him do the test. The one he testified to.
After that he's like, you're moving off away from the panel and they told me to do some field sobriety tests. That's when I was like no, I didn't drive. So I refused at everything from there. I told them I didn't drive. I didn't do none of these what you tried to say. I didn't drive. I didn't do nothing.
So they were trying to make me do these tests. So they finally said okay. So Officer Lopez came over and he told me you're under arrest for DUI again. So that's when I said, you're fucking lying. I didn't fucking drive. I fucking told you I did not fucking drive. I was yelling at him at that time.
So they put me back in the car. And that's what happened. Q. Okay. You made a statement earlier about driving. What do you mean by, in quotations, that you drove?
A. Well, I told them I drove because I did drive earlier though. That was when we went to Food City and that was like a couple hours earlier. And we went and she got catfish. And I went and got the beer. So that's why we were drinking. That was earlier.(ECF No. 13-1 at 568-70).
On cross-examination, the following colloquy occurred:
Q [by prosecutor]. Mr. Begay, you were in court last Thursday when the officers who came to the scene testified, right?
A. Yes, sir.
Q. None of them testified that you denied driving. Are you saying that they were lying?
A. That I denied driving?
Q. None of the -- today you've told the jury that you told them, I wasn't fucking driving. That's what you testified to, right?
A. Yes, sir.
Q. But none of them said that you told them that at the scene.
A. What? I guess I'm saying they're lying then.(ECF No. 13-1 at 571).
The jury was instructed on aggravated driving or actual physical control while under the influence of intoxicating liquor, impaired to the slightest degree, and the lesser included offense of driving or actual physical control while under the influence of intoxicating liquor, impaired to the slightest degree. (ECF No. 13-1 at 605). The jury returned a verdict of guilty on both charges of aggravated driving or actual physical control while under the influence of intoxicating liquor, impaired to the slightest degree. (ECF No. 13-1 at 623). At the conclusion of a sentencing hearing Begay was sentenced to concurrent prison terms of ten years each on two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor, impaired to the slightest degree.
As aggravating factors the sentencing court found, in addition to the two charges of driving when his license had been revoked, to which Begay admitted at trial, a conviction for aggravated DUI, a conviction for battery on a police officer, and a conviction for aggravated assault. (ECF No. 13-1 at 660-61).
Begay timely appealed and was appointed appellate counsel, who filed an Anders brief. Begay, 2019 WL 3178782, at *1. Begay filed a pro per appellate brief, asserting the trial court erred by denying his motion to dismiss, “arguing that the police wrongly denied his request for counsel [at the time of his arrest and before the blood draw] and ‘deprived him of acquiring exculpatory evidence.'” Id. The state appellate court denied the claim on the merits, reasoning as follows:
The superior court concluded that Appellant was not denied his right to counsel because police gave him the opportunity to use a phonebook and telephone to contact an attorney while in the DUI van from about 10:35 pm until 11:15 pm, but Appellant never chose to make a phone call. Moreover, the court considered Appellant's statement, “[c]an I have an attorney here for the blood draw?” And the court determined that his request was limited to the blood draw. In addition, Appellant was given an opportunity to contact an attorney. Also, after police advised Begay of his rights per Miranda he was not questioned further. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (suspect's statements made during an in-custody interrogation are only admissible if police have informed the suspect of his or her constitutional rights before questioning); see also State v. Smith, 193 Ariz. 452, 457 [] (1999). Thus, the superior court did not abuse its discretion.
***
The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of eight members and the court properly instructed the jury on the elements of the charge, Appellant's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Appellant was given an opportunity to speak at sentencing, and his sentence was within the range of acceptable sentences for his offense.Id., 2019 WL 3178782, at *2. The Arizona Supreme Court denied review on March 26, 2020. (ECF No. 1 at 3). Begay did not seek state habeas relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (ECF No. 1 at 3-4).
II. Federal Habeas Claims
In his first claim for § 2254 relief Begay asserts he was denied the effective assistance of counsel. Begay alleges his appellate counsel was ineffective because counsel filed “an Ander's Brief without referring to anything in the record that might arguably support the Appeal, ” and further alleging “the Arizona Court of Appeals never afford[ed] the petitioner the assistance of counsel to argue the Appeal that was raised by the petitioner . . .” (Id.). Begay argues he was prejudiced by these errors because “[t]he court never return[ed] the petitioner[']s claim to his appointed counsel to properly address the issues he raised. He cannot abandon his argument because it will become second and successive which is prohibited.” (Id.).
In his second claim for federal habeas relief Begay asserts his right to due process was violated, stating he has a “‘liberty' interest in a right to counsel under Rule 6.1(a) Right to Counsel Ariz. R. Crim. P. . . ., ” and that his request “‘Can I have an attorney here for the blood draw?'” was a broader request than simply asking that he be provided an attorney at that time. (ECF No. 1 at 7). According, he argues, his liberty interest was infringed because “[t]his case involves denial of right to counsel in connection with an offense in which Blood Alcohol Concentration plays a significant role, ” and his “due process right to obtaining independent exculpatory evidence bearing on his alleged alcohol impairment” was infringed, citing Rule 6.1(a) of the Arizona Rules of Criminal Procedure. (Id.).
This rule provides:
A defendant has the right to be represented by counsel in any criminal proceeding. The right to be represented by counsel includes the right to consult privately with counsel, or the counsel's agent, as soon as feasible after a defendant has been taken into custody, at reasonable times after being taken into custody, and sufficiently in advance of a proceeding to allow counsel to adequately prepare for the proceeding.
Begay's third claim for federal habeas relief asserts the arresting officer committed perjury by testifying that Begay was given the opportunity to consult with counsel prior to the blood draw. (ECF No. 1 at 8).
Respondents contend Begay's first and third claims for federal habeas relief are procedurally defaulted and that all of his claims are without merit.
III. Analysis
A. Governing Law
1. Exhaustion and Procedural Default
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). In non-capital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
2.The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)
The Court may not grant a writ of habeas corpus to a prisoner on a claim adjudicated on the merits in state court unless the state court's decision denying the claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it applied a rule contradicting the governing law established by United States Supreme Court opinions, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). When determining whether the state courts' denial of relief was contrary to or an unreasonable application of the governing law, the federal habeas court analyzes the “last reasoned opinion” of the state courts, which in this matter is the Arizona Court of Appeals' opinion in Neufeld's state post-conviction action. See, e.g., Williams v. Johnson, 840 F.3d 1006, 1009 (9th Cir. 2016); Deck v. Jenkins, 814 F.3d 954, 977 (9th Cir. 2016).
The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Id.
Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Under the AEDPA, state court findings of fact are given considerable deference. See 28 U.S.C. § 2254(d)(2). The habeas court presumes that the state court's factual determinations are correct, and petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (stating that “a determination of factual issues made by a[s]tate court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”); Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004). “Clear and convincing evidence” within the meaning of § 2254 “requires greater proof than preponderance of the evidence, ” instead the petitioner must present evidence that provides “an abiding conviction” that the factual contentions being advanced are “highly probable.” Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th Cir. 2004) (quotation omitted). And the “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001). Furthermore, “[u]nlike § 2254(d), § 2254(e)(1)'s application is not limited to claims adjudicated on the merits. Rather, it appears to apply to all factual determinations made by state courts.” Kirkpatrick v. Chappell, 950 F.3d 1118, 1131 (9th Cir.), cert denied, 141 S.Ct. 561 (2020).
Additionally, a trial court's or hearing court's credibility determination is entitled to a presumption of correctness because the court had the opportunity to observe the petitioner's testimony. See Rice v. Collins, 546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing the record might disagree about [a witness's] credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.”); Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to re-determine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”); Aiken v. Blodgett, 921 F.2d 214, 217 (9th Cir. 1990) (“Section 2254(d) ‘gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court.'”); Wells v. Ryan, 2015 WL 9918159, at *19 (D. Ariz. Aug. 13, 2015), report and recommendation adopted, 2016 WL 319529 (D. Ariz. Jan. 27, 2016).
3.The Strickland standard
To establish that he was denied the effective assistance of counsel a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. See Id. at 687. Counsel's performance will be held constitutionally deficient only if the habeas petitioner proves counsel's actions “fell below an objective standard of reasonableness, ” as measured by “prevailing professional norms.” Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010). To establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The question for a reviewing court applying Strickland under section 2254(d) is whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard . . ..” Harrington, 562 U.S. at 788. Relief is warranted only if no reasonable jurist could disagree that the state court erred in its application of the Strickland analysis. See Pinholster, 563 U.S. at 188; Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014).
Additionally, on federal habeas review a Strickland claim adjudicated on the merits by a state court is reviewed under a “highly deferential” or “doubly deferential” standard. Atwood v. Ryan, 870 F.3d 1033, 1057 (9th Cir. 2017); Visciotti v. Martel, 862 F.3d 749, 770 (9th Cir. 2016). The “highly deferential” standard of review “‘requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'” Visciotti, 862 F.3d at 770, quoting Strickland, 466 U.S. at 689. The “doubly deferential” standard of review requires the habeas court applying Strickland to determine whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard . . .” Harrington, 562 U.S. at 788 (emphasis added). Even if the Court could conclude on de novo review that the petitioner might satisfy both prongs of the Strickland test, the “AEDPA requires that a federal court find the state court's contrary conclusion” “objectively unreasonable before granting habeas relief.” Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (emphasis added). “Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Harrington, 562 U.S. at 105. Under § 2254(d), the question is not whether counsel's actions were reasonable; instead the question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Id.
To succeed on a claim of ineffective assistance of appellate counsel,
. . . the petitioner [must] demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue. Smith, 528 U.S. at 285; Wildman v. Johnson, 261 F.3d 832, 841-42 (9th Cir. 2001). Second, the petitioner must show prejudice, which in this context means that the petitioner must demonstrate a reasonable probability that, but for appellate counsel's failure to raise the issue, the petitioner would have prevailed in his appeal.Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010). To establish objectively unreasonable appellate performance under Strickland, a petitioner must show that his counsel “unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them.” Smith v. Robbins, 528 U.S. 259, 286-87 (2000). Where counsel has declined to file a merits brief pursuant to a valid Anders-type procedure, no prejudice to the criminal defendant's right to counsel may be presumed. Id. Counsel fulfills their obligation by reviewing the record, conferring with the defendant, submitting an Anders brief, and asking the state court to allow the defendant to file a pro per appellate brief. See Id. at 267; Anders v. California, 386 U.S. 738, 744 (1967).
B. Merits of Begay's Claims for Relief
1. Ineffective assistance of appellate counsel
In his first claim for § 2254 relief Begay asserts he was denied the effective assistance of appellate counsel. Begay alleges his appellate counsel was ineffective because counsel filed “an Ander's Brief without referring to anything in the record that might arguably support the Appeal, ” and further alleging “the Arizona Court of Appeals never afford[ed] the petitioner the assistance of counsel to argue the Appeal that was raised by the petitioner . . .” (Id.). Begay argues he was prejudiced by these errors because “[t]he court never return the petitioner[']s claim to his appointed counsel to properly address the issues he raised.” (Id.).
Begay failed to fairly present this claim to the Arizona Court of Appeals in a procedurally correct manner, i.e., by presenting this claim to the appellate court in a Rule 32 action. Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims prohibit Begay from filing a Rule 32 action at this time, the claim is exhausted but procedurally defaulted.
Begay does not discuss any cause for or prejudice arising from the alleged procedural default of this claim in his reply at ECF No. 14. Additionally, five months after his reply was docketed Begay filed a “Motion for: exhaustion of state remedies. exhaustion of the legal bases of the claim. exhaustion of the factual bases of the claim.” (ECF No. 15). In this motion Begay discusses the merits of his second and third habeas claims, and then states: “In the interest of justice and fundamental fairness the petitioner humbly beseech the United States federal court for the district of Arizona to grant a ‘stay' and ‘abeyance.'” (ECF No. 15 at 6). However, he does not ask the Court to stay this matter while he returns to the state court to properly exhaust his first federal habeas claim, but instead discusses his liberty interests and his alleged right to counsel and his right to “gather evidence relevant to intoxication, ” i.e., his second and third claims for federal habeas relief. (ECF No. 15, passim).
Begay fails to establish cause for or prejudice arising from his procedural default of his claim that he was denied the effective assistance of appellate counsel, and he does not assert his actual, factual innocence of the crime of conviction. Additionally, the claim may be denied on the merits because the filing of an Anders brief does not, without a showing of prejudice, establish a claim for ineffective assistance of appellate counsel. See Reed v. Schriro, 290 Fed.Appx. 982, 985-86 (9th Cir. 2008); Wilcox v. Packebush, 868 F.2d 1273, 1989 WL 11332, at *1-2 (9th Cir. 1989). Begay filed a pro per appellate brief outlining the substance of his claim, which the Arizona Court of Appeals considered and rejected, in addition to reviewing the record for fundamental error. Because Begay is unable to establish that, but for his counsel's alleged error, he would have succeeded on appeal, he fails to establish prejudice. Accordingly, habeas relief may not be granted on this claim for federal habeas relief.
2.Denial of right to counsel prior to blood draw
In his second claim for federal habeas relief Begay contends his right to due process was violated by the arresting officers, stating his “‘liberty' interest is that he has a right to counsel under Rule 6.1(a) Right to Counsel Ariz. R. Crim. P. . . ., ” and that his request “‘Can I have an attorney here for the blood draw?'” was a broader request than simply asking that he be provided an attorney at that time. (ECF No. 1 at 7). According, he argues, his liberty interest was infringed because “[t]his case involves denial of right to counsel in connection with an offense in which Blood Alcohol Concentration plays a significant role, ” and his “due process right to obtaining independent exculpatory evidence bearing on his alleged alcohol impairment” was infringed, citing Rule 6.1(a) of the Arizona Rules of Criminal Procedure. (Id.).
Begay asserts in his federal habeas petition:
The petitioner's “Liberty” interest is similar to Carle v. City of Chino, 105 F.3d 493, 495-96 (9th Cir. 1997) (Finding state-created liberty interest in pretrial use of phone where state law mandated a particular outcome; it explicitly entitled arrestees to make at least three telephone calls within three hours of arrest.) And, United States v. Cananes, 622 F.Supp. 279, 281 W.D. N.C. (1985) (recognizing need for suspect's access to his counsel, friend, relatives, or some disinterested person within a relatively short time after his arrest.
Therefore, the issue presented is whether the polices' action was a violation of the petitioner's right to counsel under the Arizona constitution. He contends the polices' conduct deprived him of his right to counsel under Article 2 Section 4 and 24 of the Arizona Constitution.(ECF No. 1 at 13). Begay appears to merge this issue, i.e., his “liberty” right to counsel with his “right to gather independent exculpatory evidence, ” stating: “The right to Counsel is an extension of the doctrine that defendants have the right to gather independent exculpatory evidence, ” citing State v. Transon, 186 Ariz. 482 (1996), and further arguing: “Arizona Due Process Clause guarantees DUI suspects “a fair chance to obtaining independent evidence of sobriety essential to his defense at the only time it is available, ” citing the evidentiary hearing transcript. (ECF No. 1 at 15).
In presenting this claim in his pro per appellate brief Begay cited the Arizona constitution; the Sixth Amendment to the United States Constitution; Arizona statutes; the Arizona Rules of Criminal Procedure; the Arizona Rules of Evidence, the opinions of the Arizona state courts, and in one instance Begay cited Herring v. United States, 555 U.S. 135 (2009). (ECF No. 13-1 at 84-87). In his pro per brief Begay argued: “Statement of issue presented for review. The defendant contends that the trial Court erred by denying his motion to dismiss.” (ECF No. 13-1 at 88). He argued: “The narrow issue presented by this Appeal is whether the police action was a violation of the defendant['s] right to counsel under the Arizona Constitution. He contends the police conduct deprived him of his right to counsel under Article 2 Section 4 and 24 of the Arizona Constitution.” (ECF No. 13-1 at 88-89) (emphasis in original). In his appellate brief Begay only mentioned his federal constitutional right to counsel as follows:
Herring presented a claim bearing on the exclusionary rule. The Supreme Court concluded the exclusionary rule did not require the suppression of drugs and a firearm found by officers in a search incident to an arrest based on a warrant which the clerk of a neighboring county had said was outstanding, but which was subsequently found to have been recalled. The Court concluded the police department's record-keeping error, i.e., failing to update the computer database to reflect a recall of the arrest warrant, was negligent and that the error was not the result of systematic error or reckless disregard of constitutional requirements. Accordingly, the Court held, any minimal deterrence that might result from applying the exclusionary rule would not outweigh the heavy cost of excluding otherwise admissible and highly probative evidence. See 555 U.S. at 703-04.
[Rule 6.1(a)] “recognizes the federal and state constitutional right to counsel” which the state may not unreasonably restrict. Kunzler v. Pima City Superior Court, 154 Ariz. 568, 569 [] (1987); see also State v. Juarez, 161 Ariz. 76, 80 [] (1989). In DUI investigations, this right to counsel includes the right to consult with an attorney before deciding whether to submit to a blood alcohol test. State v. Stanley, 217 Ariz. 253, 258 [] (App. 2007) . . .
The Arizona Supreme Court has also determined that [the right to consult with an attorney before deciding whether to submit to a blood alcohol test] under Rule 6.1 is constitutionally protected in this setting:
“We cannot imagine many cases where this would be a disruption of the procedures followed by the police in preparing to administer a breath test to a driver. Informing the driver that he may not call his attorney before taking the test misstates the law and violates the driver's right to counsel under the sixth amendment of the United States Constitution and article 2, section 24 of the Arizona Constitution.[”] Juarez, 161 Ariz. at 81, 775 P.2d at 1145.(ECF No. 13-1 at 89).
In Juarez, the Arizona Supreme Court held that informing an arrested driver that he may not call his attorney before deciding whether to take breathalyzer test violated the driver's Sixth Amendment and state constitutional right to counsel and rendered inadmissible the results of a breathalyzer test, but that the results of a second breathalyzer test given to a defendant after he was informed of his right to contact his attorney was properly admitted. See State v. Juarez, 161 Ariz. 76 (1989). The state court did not cite to any federal legal opinion in reaching this conclusion, nor did the court mention the Sixth Amendment other than in the one sentence quoted by Begay in his appellate brief.
The Arizona Court of Appeals held the trial court did not abuse its discretion in denying the motion to dismiss the charges against Begay, finding the following facts:
Appellant agreed to field sobriety tests but declined a breathalyzer test. After Appellant failed field sobriety tests, he was arrested.
An officer brought Appellant to a mobile unit designed for the investigation of crimes involving driving under the influence of alcohol (“DUI van”), where another officer completed an implied consent form and read Appellant his Miranda rights. There officers determined Appellant's driver's license was revoked. While an officer read Appellant his Miranda rights, Appellant interrupted him, stating, “[c]an I have an attorney here for the blood draw?” The officer finished reading the Miranda rights and explained to Appellant he could use a phone book and cell phone to call an attorney, which were both accessible in the DUI van.
Appellant did not call an attorney at any time, even after the officer encouraged him to do so. Appellant then gave his verbal and written consent
to the blood draw, but as the officer started to prepare for the blood draw procedure, Appellant recanted his consent. The officers obtained a search warrant, served Appellant with the same and drew Appellant's blood. After drawing Appellant's blood, the officer told Appellant he had the right to have an independent sample tested and explained that procedure.Begay, 2019 WL 3178782, at *1
The appellate court concluded, as a matter of law:
Appellant contends the superior court erred by denying his motion to dismiss, arguing that the police wrongly denied his request for counsel and “deprived him of acquiring exculpatory evidence.” We disagree. We review a superior court's denial of a motion to dismiss for an abuse of discretion. State v. Martinez, 220 Ariz. 56, 58 [] (App. 2008). The superior court concluded that Appellant was not denied his right to counsel because police gave him the opportunity to use a phonebook and telephone to contact an attorney while in the DUI van from about 10:35 pm until 11:15 pm, but Appellant never chose to make a phone call. Moreover, the court considered Appellant's statement, “[c]an I have an attorney here for the blood draw?” And the court determined that his request was limited to the blood draw. In addition, Appellant was given an opportunity to contact an attorney. Also, after police advised Begay of his rights per Miranda he was not questioned further. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (suspect's statements made during an in-custody interrogation are only admissible if police have informed the suspect of his or her constitutional rights before questioning); see also State v. Smith, 193 Ariz. 452, 457, (1999). Thus, the superior court did not abuse its discretion.Id., 2019 WL 3178782, at *2.
Begay failed to properly exhaust this claim in the state courts by fairly presenting a claim that his federal constitutional right to counsel was violated. As presented to the Arizona Court of Appeals, Begay's claim rested primarily, if not solely, on Arizona law and an Arizona Rule of Criminal Procedure, and his appellate brief discussed the holdings of the Arizona state courts rather than the federal courts. Although Begay cites in his federal habeas petition Carle v. City of Chino, 105 F.3d 493, 495-96 (9th Cir. 1997) (finding the defendant had a state-created liberty interest in the pretrial use of a phone because state law explicitly entitled arrestees to make at least three telephone calls within three hours of arrest), and United States v. Cananes, 622 F.Supp. 279, 281 (W.D. N.C. 1985), he did not cite these cases in his state appellate brief.
The Canane court held that the defendant's breathalyzer reading of .12 percent blood-alcohol content could not be said to be high enough to convict him notwithstanding the fact that his father was denied permission to see the defendant following his arrest for drunk driving. The court reasoned that, had the defendant's father been allowed to see his son, it was impossible to say what other evidence might have been available to rebut statutory presumption of intoxication. See Canane, 622 F.Supp. at 282.
The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his appellate brief; simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004). “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.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). A claim has been fairly presented only if the petitioner has described in state court both the operative facts and the federal legal theory upon which he bases his claim in federal court. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (stating that “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”); Galvan v. Alaska Dep't of Corr., 397 F.3d 1198, 1205 (9th Cir. 2005) (stating that “[t]o exhaust a federal constitutional claim in state court, a petitioner has to have, at least, explicitly alerted the court that she was making a federal constitutional claim.”). A “general appeal to a constitutional guarantee, ” such as the purported violation of a liberty interest under the due process clause, is insufficient to achieve fair presentation. Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000), citing Gray v. Netherland, 518 U.S. 152, 163 (1996). See also Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005); Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (holding a habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim, and thus did not exhaust the claim, because all they included in their appellate brief was a “scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory.”); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (holding the habeas petitioner did not exhaust a federal claim by arguing, in the state court, “the errors complained of above, individually and cumulatively denied appellant Due Process and a fair trial under federal and state constitutions”); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (concluding “[m]oreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”). A mere reference to the “Constitution of the United States” does not preserve a federal claim. Gray, 518 U.S. at 162-63. A state prisoner does not fairly present a claim to the state court if the court must read beyond the petition or brief filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27.
Additionally, the state courts' finding of fact, i.e., that Begay was provided the opportunity to contact counsel but declined to do so, was not unreasonable and he presents no clear and convincing evidence to the contrary.
A state-court decision “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 [] (2003) (emphasis added). “While ‘not impossible to meet,' that is a ‘daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.'” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) []. Thus, a “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301[] (2010).Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016).
Under § 2254(d)(2), a federal court is relieved of AEDPA deference when a state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” To show such an error occurred, the petitioner must establish that the state court's decision rested on a finding of fact that is “objectively unreasonable.” Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004), quoting Miller-El, 537 U.S. at 340. A thorough review of the transcript of the evidentiary hearing indicates the state court's factual determination was supported by substantial evidence in the state court record and was not objectively unreasonable. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's [factual] determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”).
Additionally, the state court's fact-finding process, i.e., the evidentiary hearing, was not materially deficient. See Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). Begay, in his closing argument at the evidentiary hearing, raised all of the claims and arguments presented in his appellate brief and this habeas action. After hearing Begay's and the State's closing arguments, the trial court found and concluded:
Having heard everything with regards to the issue of whether or not Mr. Begay was denied his right to counsel in the DUI van related to the specific statement - and I wrote it down when the officer testified: “Can I have an attorney here for the blood draw?” I do find that Mr. Begay was not denied his right to counsel. He was given the opportunities to use a phonebook and a telephone and he had that opportunity from about 10:35 p.m. until he left the van at 11:15 and chose never to make a phone call.
You get the opportunity, sir, to make a phone call to an attorney or several if you would like. But you have to take the opportunity. You were absolutely 100 percent given the opportunity, and there's no evidence to controvert that whatsoever.
So with regards to the right to counsel issue, quite frankly, I think the statement Mr. Begay made was a little bit unambiguous in and of itself. But even though I think the statement could have been interpreted many ways, at least two specific different ways, you were given the right to counsel. You chose not to exercise it sir. So your right to counsel was not violated. The motion issue related to that is denied.
With regards to the duplicate testing, I find no suggestion whatsoever that this officer has lied on the stand. Nothing that came up during cross-examination suggested that he lied on the stand . . .
I don't find that there was any violation of your right to get an exculpatory test. And, in fact, at that point I have no reason to believe that that second vial that you were also told about, which would be allowed for retesting by the defense if you wished, that is not available for testing. So it's still impounded, I would expect. I have no reason to believe otherwise. And it would be available for any type of independent testing by a lab of your
choosing as you are in custody. . . . You can have an independent lab test that blood . . .
Let me give you this piece of information about that, though, sir. If you do want that test - and you have the right to do that - I will sign off for an independent lab to do that and the county will pay for that. Whatever your results are, though, the state gets them just as much as you do. So if those results come back high and it does not help you, then there are two labs that the state could use to try to show that the results are high.
***
I do find the statement that Mr. Begay indicated to be very specific to “Can I have an attorney here for the blood draw?” it talks about the blood draw only. It delineates that he wanted an attorney for a blood draw only. In any case the officer actually gave wide latitude to that statement and did not ask any questions. There was no interrogation that was completed. The officer is not required to stop talking and stop their investigation. Okay? Part of a DUI investigation is they get to get blood or breath as part of the investigation, and they get to determine if you are going to consent to or if you are going to require a warrant.
When you say, “I want an attorney for the blood draw, ” that does not mean that he cannot read you the admonition, which he's required to do under law, and give you the opportunity to either consent, which could keep you from having a longer suspension, or refuse.
I do not find that there was any Miranda violation whatsoever. Nothing here suggested indicates that the officer interrogated you about anything that happened whatsoever. And you asking for an attorney for a blood draw does not mean that the police have to stop their investigation. It does not change the fact that he is supposed to read you the admin per se, and then in fact they did get a warrant.(ECF No. 13-1 at 193-97).
Furthermore, in a well-reasoned unpublished opinion, the Ninth Circuit Court of Appeals held that Rule 6.1 of the Arizona Rules of Criminal Procedure provides a broader right to consult counsel than the right found under federal law. See Perez v. Pima Cnty. Superior Ct., 50 Fed.Appx. 368, 370 (9th Cir. 2002) (“Petitioner does not have a federal right to consult with counsel prior to submitting to a chemical sobriety test, or a federal right to have counsel physically present during the test.”). In affirming the District Court's decision denying a writ of habeas corpus pursuant to § 2254, the Ninth Circuit determined that an individual's Sixth Amendment right to the assistance of counsel is not violated when they are required to submit to a chemical sobriety test without the presence of counsel. Accordingly, to the extent the claim was properly exhausted and/or even if the claim was properly exhausted, and even if Begay could establish that he was not allowed the opportunity to contact counsel before submitting to a chemical sobriety test, Begay did not have a federal right to consult with counsel, or have counsel present, prior to submitting to a chemical sobriety test. Therefore, to the extent the state court considered and denied relief on a claim that Begay's federal constitutional right to counsel was violated by the purported denial of counsel prior to the performance of a chemical sobriety assessment, this was not clearly contrary to or an unreasonable application of federal law. See Robertson v. Pichon, 849 F.3d 1173, 1186 (9th Cir. 2017); Kanikaynar v. Sisneros, 190 F.3d 1115, 1119 (10th Cir. 1999); Perez, 50 Fed.Appx. at 370; Beltran v. Ryan, 2013 WL 6496011, at *4 (D. Ariz. Dec. 11, 2013) (“ The Supreme Court, however, has never held that the Sixth Amendment right to counsel attaches after arrest but prior to submitting to a blood alcohol test.”); Perez v. Arnold, 2019 WL 4392405, at *6 (E.D. Cal. Sept. 13, 2019), report and recommendation adopted, 2019 WL 6003491 (E.D. Cal. Nov. 14, 2019).
The fact pattern in Perez is similar to that presented in this matter:
On September 21, 1993, a Pima County deputy sheriff stopped Petitioner for speeding. Following field sobriety tests, the deputy placed Petitioner under arrest and advised him of his Miranda rights. Petitioner immediately requested an attorney. When asked if he would submit to a chemical sobriety test, Petitioner replied that he would take a blood test but wanted an attorney present during the test. The deputy informed Petitioner that he did not have the right to have an attorney present during the test, but could telephone an attorney. Petitioner continued to insist on having his attorney present for the blood test. Interpreting Petitioner's insistence as a refusal to submit to the test, the deputy transported Petitioner to the Pima County Jail and read Petitioner the Arizona Implied Consent affidavit. The affidavit informed Petitioner of the deputy's right to conduct chemical testing and the consequences, under Arizona law, of Petitioner's refusal to submit to testing. Petitioner continued to insist on having his attorney present.Perez, 50 Fed.Appx. at 369. In reaching the conclusion that the petitioner's Sixth Amendment right to counsel had not yet attached, the Perez panel cites Schmerber v. California, 384 U.S. 757, 761 (1966), Roberts v. Maine, 48 F.3d 1287, 1290-91 (1st Cir. 1995) (rejecting argument that a suspect's right to counsel attaches prior to submitting to a sobriety test), McVeigh v. Smith, 872 F.2d 725, 727-28 (6th Cir. 1989) (same), Langelier v. Coleman, 861 F.2d 1508, 1510 n.3 (11th Cir. 1988) (same), and Nyflot v. Minnesota Commissioner of Public Safety, 474 U.S. 1027 (1985) (dismissing for lack of a substantial federal question the appellant's claim that her Constitutional rights were violated when she was refused counsel prior to submitting to a sobriety test).
First, although Robertson was under arrest and in custody at the booking station, a state court could have reasonably concluded that Agent Ryan's request that Robertson submit to chemical testing did not constitute custodial interrogation, because such a request “[i]n the context of an arrest for driving while intoxicated” does not constitute “an interrogation within the meaning of Miranda.” Neville, 459 U.S. at 564 n.15 []; see also Muniz, 496 U.S. at 604 []. Accordingly, a state court could reasonably conclude that Robertson's statement “I want my attorney” was an attempt to “invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.'” McNeil, 501 U.S. at 182 n.3 []. Because the Supreme Court has stated that it has never answered the question whether a defendant can make such an anticipatory invocation, a state court's conclusion that Robertson's anticipatory invocation of his right to counsel did not trigger any rights under Edwards could not be an unreasonable application of Supreme Court precedent. See Donald, 135 S.Ct. at 1376. Robertson, 849 F.3d at 1186.
3.Perjury by arresting officer
Begay also asserts the arresting officer committed perjury by testifying during the evidentiary hearing that Begay was given the opportunity to consult with counsel prior to the blood draw. In his federal habeas petition Begay does not mention any specific federal constitutional right which was violated by the purported perjurious statements, but again asserts: “This case is specifically about the petitioner['s] right to consult with counsel sufficiently in advance of the proceeding [presumably the blood draw] therefor.” (ECF No. 1 at 8). Begay contends:
. . . this argument is specifically about consulting with counsel before any criminal proceeding began, therefore, the petitioner had to establish that officer McGillis requested the petitioner to submit to a blood test without providing the petitioner access to counsel in violation of Rule 6.1(a) Right to Counsel. . . . the petitioner is arguing that officer McGillis knowingly used false testimony to deprive the petitioner of properly establishing that his right to counsel was violated and that the court relied upon this falsehood in it[s] factual determination.(Id.)
In his pro per appellate brief to the Arizona Court of Appeals Begay asserted:
The defendant requested, ‘Can I have an attorney here for the blood draw' and Officer McGillis replied, We don't wait for attorneys to show up and arrive to monitor and watch the blood draw”, but he can absolutely have an opportunity to have a private conversation to seek legal [advice] to decide whether or not he was going to go forward with the test which is requested . . . thereafter, Officer McGillis read the admonition and he asked the defendant to consent to a blood draw at 2135 hour.(ECF No. 13-1 at 93). He further alleged:
. . . the defendant could not counter against the state's evidence because Officer McGillis['] action foreclosed all possibility of obtaining exculpatory evidence and giving the defendant a phone call before requesting a blood draw would not have hamper[ed] the investigation. (see p. 39. Id. at 19-25, Evid. Hearing transcript) “we weren't in a hurry, we had, I think, 33 minutes from the time . . . to the time of the two hour window we had to obtain our evidence. . . . he could have easily had a conversation and sought legal advice . . .”(ECF No. 13-1 at 95). Begay then cited the state statute defining perjury and asserted:
. . . at the [evidentiary] hearing Officer McGillis sworn under oath testified: “And I referenced the statute. Because he made the statement about an attorney and about what if I refuse, instead of asking him if he would consent, now I'm right into explaining the 90 day suspension followed by the refusal should he choose to do so, because I told him when he got a hold of an attorney, he could have the discussion to determine what was best for his circumstances.” (p. 13. Id. at 3-10, evid. Hearing transcript)
This statement is deliberately solicited to obstruct the defendant's attempt to establish that Officer McGillis denied the defendant his right to counsel before being requested to submit to a blood draw.(ECF No. 13 at 96-97). Begay's brief then moves to his next issue, that “the Court failed to do her duty.” (ECF No. 13-1 at 97). In his motion for reconsideration of the denial of his appeal Begay does not use the term “perjury” at any point regarding Officer McGillis' statements at the evidentiary hearing or at trial. (ECF No. 13-1 at 100-14).
In his pro per petition for review to the Arizona Supreme Court (ECF No. 13-1 at 115-32), Begay argued the state appellate court's “reliance upon Officer McGillis's perjurious statements that he provided a phone without asking for consent and that the petitioner chose to do the test” was improper. (ECF No. 13-1 at 127). He argued that, because during trial the officer's testimony indicated the officer “had asked the petitioner to consent to a blood test more than once, ” the officer “knowingly falsified his statements to conceal the fact that he had deprived the petitioner of his right to counsel.” (ECF No. 13-1 at 127). All of Begay's statements regarding the officer's alleged “perjury” were in support of his “narrow claim” that his right to counsel was violated:
In this pleading Begay cites only to the opinions of state courts, the state constitution, the state rules of criminal procedure, and state statutes. (ECF No. 13-1 at 117).
The petitioner has demonstrated that Officer McGillis['] alleged perjurious statements to conceal the fact that he had deprived the petitioner of his right to counsel. Thereupon, the appellate court relied upon Officer McGillis's allegations and grounded it's [sic] decision upon perjurious statements and incorrectly applied the law.(ECF No. 13-1 at 130).
Broadly construing Begay's petition, he asserts Officer McGillis committed perjury at the evidentiary hearing and, therefore, that the trial court's denial of his motion to dismiss and the state appellate court's rejection of his claim on appeal were based on an incorrect conclusion of fact.
Begay failed to properly exhaust this claim in the state courts, by alleging that the officer's alleged false statements at the evidentiary hearing violated his federal constitutional right to due process of law. Begay seems to argue that, because the officer's statements were false, the state court's conclusion that Begay had been afforded the opportunity to contact counsel was unfounded and, therefore, the state courts incorrectly found that he had been afforded this opportunity when in fact he had been denied his state “right” to contact counsel prior to submitting to a blood draw.
This claim fails for the same reasons discussed with regard to Begay's second claim for relief. Begay failed to properly exhaust this claim in the state courts as one asserting the violating of a specific federal constitutional right. Additionally, Begay offers no clear and convincing evidence that the officer did in fact commit perjury or that the state trial court's fact-finding process was flawed. As previously noted, the state hearing court's conclusion that the officer did not make false statements, an issue of credibility, is entitled to deference by this Court. Furthermore, at his trial Begay argued to the jury that the police officers' testimony could not be trusted and was not reliable, highlighting what he perceived to be discrepancies in their testimony. The jury, by its verdict, found the officers' testimony credible and found Begay's testimony not credible.
IV. Conclusion
Begay failed to properly exhaust his federal habeas claims in the state courts, and he has not shown cause for nor prejudice arising from his procedural default of these claims, nor does he assert his factual innocence. Additionally, Begay fails to present clear and convincing evidence that the state courts' findings of fact were incorrect or arose from a flawed fact-finding process. Furthermore, Begay fails to establish that he was prejudiced by his appellate counsel's alleged errors, and there is no clearly established United States Supreme Court precedent that an individual has the right to consult counsel prior to a blood draw after an arrest for driving under the influence, when the blood is drawn pursuant to a search warrant.
IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
IT IS FURTHER RECOMMENDED that, because the Arizona Rules of Criminal Procedure regarding timeliness and the waiver and preclusion of claims bar Begay from returning to the state courts in an effort to properly exhaust any of his federal habeas claims, the Court should deny Begay's motion at ECF No. 15.
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.
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. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the 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 ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted and, should Begay seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.