Opinion
CV 20-00717 PHX MTL (CDB)
04-12-2021
Steven Thomas Bernal, Petitioner, v. Edwin Jensen, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI:
ORDER
Camille D. Bibles, United States Magistrate Judge.
Petitioner Steven Bernal, proceeding pro se, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 13, 2020. Respondents answered the petition (ECF No. 7), and Bernal has filed a reply (ECF No. 8). In his petition Bernal challenges his conviction on one count of sale or transportation of dangerous drugs.
I. Background
The following facts and procedural background are taken from the Arizona Court of Appeals' decision denying Bernal's appeal.
On October 17, 2016, Sergeant Ron Elcock of the Tempe Police Department began undercover surveillance near the Pride gas station in Tempe. At the same time, undercover officer Joseph Manchak provided cover across the street. Both officers observed Bernal and another individual, Patrick Johnson, standing at the gas station with a bicycle. Elcock approached Bernal. Bernal told Elcock that he was selling the bicycle, and Elcock mentioned he knew someone who might be interested in purchasing the bike. To facilitate the purchase, Elcock and Bernal exchanged numbers. At this time, Johnson offered to sell Elcock a small amount of
methamphetamine. Bernal told Elcock that the methamphetamine was “fire, ” and Elcock purchased the methamphetamine.
Later that evening, Bernal reached out to Elcock via text message. Elcock and Bernal also spoke on the phone to discuss two things: the potential buyer of the bike and purchasing methamphetamine. Bernal was reluctant to talk on the phone regarding the methamphetamine but arranged for the two to meet up at a Circle K in Tempe. At the meetup, Manchak, the interested buyer, tested the bicycle and Elcock discussed the methamphetamine purchase with Bernal. Elcock indicated he would buy one-eighth of an ounce of methamphetamine for $150. Bernal rebuffed this offer, but the two ultimately negotiated a price of $200. The methamphetamine was not available at that time, so Bernal told Elcock to come back to the Circle K later.
Later, after a brief text message conversation regarding the timing of the pickup, Elcock and Manchak returned to the Circle K to meet Bernal. When the two detectives arrived, both Bernal and Johnson were there. Elcock purchased the methamphetamine from Johnson, while Bernal stood near the door of the Circle K.
Elcock then returned to the police station, searched Bernal's phone number on Facebook, and identified Bernal. The purchased drug tested positive for methamphetamine after an initial test by Elcock. Elcock then sent the methamphetamine to a Department of Public Safety (“DPS”) laboratory for further testing, which confirmed that the substance was 3.45 grams of methamphetamine.
The State charged Bernal with one count of sale or transportation of dangerous drugs. At trial, Elcock testified to his encounters with Bernal, and Manchak testified to his observations. At the close of the State's presentation of evidence, Bernal moved for acquittal under Arizona Rule of Criminal Procedure 20. The superior court found sufficient evidence to support a guilty verdict.
At the close of the three-day trial, the jury found Bernal guilty of one count of sale or transportation of dangerous drugs. After the trial, the defense opposed the imposition of flat-time sentencing. At the sentencing hearing, the court heard evidence regarding Bernal's prior felony convictions and oral argument on the issue of flat-time sentencing. The court found Bernal had prior felony convictions and a flat-time sentence was proper. Subsequently, the court imposed a 14-year prison sentence with 60 days' presentence incarceration credit.State v. Bernal, 2019 WL 949007, at *1-2 (Ariz.Ct.App. Feb. 26, 2019).
The jury deliberated for approximately three hours before reaching a verdict. (ECF No. 7-1 at 16, 18).
Bernal's appointed appellate counsel filed an Anders brief, asserting counsel could find no meritorious claims to raise on Bernal's behalf. (ECF No. 7-1 at 104-13). Bernal filed a pro se appellate brief asserting: the trial court (a Commissioner) lacked constitutional and statutory authority to hear his case which resulted in an unreliable record for appeal; the trial court erred by denying his Rule 20 motion; and the trial court erred by instructing the jury that methamphetamine is a dangerous drug. (ECF No. 7-1 at 119-30). See also Bernal, 2019 WL 949007 at *2. The appellate court denied relief on the merits of each claim. Bernal, 2019 WL 949007 at *2-3. Bernal sought review in the Arizona Supreme Court (ECF No. 7-1 at 142-47), which denied review on July 22, 2019. (ECF No. 7-1 at 149).
Bernal initiated an action for state post-conviction relief, and did not seek the appointment of counsel. (ECF No. 7-1 at 151-53). In his pro se post-conviction petition, filed August 22, 2019, Bernal asserted:
1. His “appointed trial counsel fail[ed] to fully present the constitutional deficiency of the conviction under Rule 20 by not addressing confrontation clause violations.” Bernal asserted his Confrontation Clause rights were violated by the admission of an audio recording of a conversation between Elcock and Bernal.
2. The trial court deprived him “of a fair trial by failing to consider the inherent confrontation clause violations;”
3. “[A]ppointed counsel faile[d] to effectively represent the interests of the defendant by allowing an improper and excessive sentence under Amendment VIII;”
4. The imposed sentence was excessive;
5. The prosecutor committed “intentional” misconduct, in violation of Bernal's rights to due process and equal protection.(ECF No. 7-1 at 155-59). The habeas trial court ordered the State to file a response no later than October 14, 2019, and the State filed a response, electronically, on October 14, 2019. (ECF No. 7-1 at 166, 168-80).
On October 19, 2019, Bernal prepared and placed in the mail a “Responsive Motion to Strike Untimely Answer and for Expedited Disposition Upon Resulting Confession of Error by State, ” asserting the State's response was not timely because, although his copy of the response was signed October 14, 2019, it was not postmarked until October 15, 2019. (ECF No. 7-1 at 182-87). The motion to strike was denied in an order issued by the state habeas trial court on November 1, 2019. (ECF No. 7-1 at 189). The trial court stated:
The Court ordered the State to prepare and file the Response to the Petition for Post-Conviction Relief. The Court has received notification from the Rule 32 Management Unit that the State's Response was filed on October 15, 2019 with the Clerk of the Court. In addition, the Court has received and considered Defendant's “Responsive Motion to Strike Untimely Answer and for Expedited Disposition upon Resulting Confession of Error by State” filed on October 24, 2019. Contrary to Defendant's representation, the Response was filed by the October 14, 2019 deadline. There is no basis to strike the Response.(ECF No. 7-1 at 189). Accordingly, the trial court allowed Bernal until November 15, 2019 to file a reply to the State's response. (ECF No. 7-1 at 190).
This appears to be an error, as the response is stamped by the Clerk of the Superior Court as electronically filed shortly after noon on October 14, 2019. (ECF No. 7-1 at 168).
However, Bernal did not file a reply, but instead filed a Notice of Appeal on November 8, 2019. (ECF No. 7-1 at 192-95). In his Notice of Appeal he indicated he was appealing “the order of the court of 1 November 2019 in the Rule 32 proceeding . . .” (ECF No. 7-1 at 195). The Arizona Court of Appeals issued an Order Dismissing Review on November 22, 2019, stating:
A review of the record in this matter indicates that the trial court has not entered its final order in defendant's post-conviction relief proceeding. As such, the petition for review in this matter is premature. Pursuant to Arizona Rule of Criminal Procedure 32.9(c)(1)(A), a party may file a petition for review “[n]o later than 30 days after the entry of the trial court's final decision.” (Emphasis added). After the trial court enters its final decision in defendant's post-conviction relief proceeding, defendant will have thirty days within which to file a petition for review by this court. Because the present petition is premature,
IT IS ORDERED dismissing this matter without prejudice.(ECF No. 1 at 18).
In an order entered March 13, 2020, the state habeas trial court denied relief on the merits of Bernal's claims for state post-conviction relief. (ECF No. 7-1 at 204-07). Inter alia, the trial court determined:
Defendant argues that counsel failed to address the confrontation clause violation and allowed an improper and excessive sentence. As set forth above, there was no confrontation clause violation under the evidence presented in this case, and Elcock's testimony provided substantial evidence to support defendant's conviction without the recording. Defense counsel argued against a flat-time sentence, but the court disagreed. Defendant has not satisfied either prong of the Strickland test and his claim of ineffective assistance of counsel fails.(ECF No. 7-1 at 207). The state habeas trial court further concluded: “The prosecutor violated no ethical or evidentiary rule in offering the recording as an exhibit, and Defendant has not cited any.” (Id.). Bernal did not seek review of the state trial court's final decision denying post-conviction relief in the Arizona Court of Appeals.
In his federal habeas petition Bernal asserts:
1. “The trial court was without jurisdiction to render judgment or to impose sentence” because the trial was conducted and his sentence was entered by a Commissioner. Bernal argues the power to convict him and sentence him “are exclusively held by judges, and withheld from Commissioners . . . as specifically addressed in Supreme Court Rule 96(a)(11).” (ECF No. 1 at 5).
2. “The judgment and the sentence were otherwise in violation of the constitutions of the State of Arizona and/or of the United States.” (ECF No. 1 at 7).
3. “The state failed to demonstrate sufficient evidence to prove either offense charged by indictment, or to impose sentence thereupon, beyond a reasonable doubt. (Actual innocence).” (ECF No. 1 at 8).
4. “Constitutional violations obstructed relief on direct appeal and post-conviction review.” (ECF No. 1 at 10).
Respondents assert “Bernal has failed to either exhaust his claims by not properly presenting them to both the trial court and the Arizona Court of Appeals or present cognizable claims. He also does not present an excuse for his procedural defaults. This Court should therefore dismiss his petition.” (ECF No. 7 at 11).
II. Analysis
A. 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). In noncapital 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).
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).
[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). Additionally, if a state court applied a procedural bar but then alternatively addressed the merits of the claim, the claim is still barred from federal habeas review. See Harris v. Reed, 489 U.S. 155, 264 n.10 (1989); Apelt v. Ryan, 878 F.3d 800, 825 (9th Cir. 2017) (“[W]here a state court expressly invokes a procedural bar, the claim is defaulted, even though the state court goes on to discuss the merits of the claim.”), cert. denied, 139 S.Ct. 2716 (2019); Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000).
A petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Accordingly, the exhaustion requirement is satisfied if the petitioner is procedurally barred from pursuing a previously un-presented claim in the state's “highest” court. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims bar Bernal from returning to the state courts to exhaust any unexhausted federal habeas claim, he has exhausted but procedurally defaulted any claim not previously properly presented to the Arizona Court of Appeals. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
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). Additionally, although relief may not be granted on an unexhausted claim absent a showing of cause and prejudice or a fundamental miscarriage of justice, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). See also Runningeagle v. Ryan, 686 F.3d 758, 769 n.3 (9th Cir. 2012).
In reply to Respondents' allegation that he failed to properly exhaust some of his claims in the state courts, Bernal reasserts the merits of his claims for relief. (ECF No. 8 at 1-2). He further argues, inter alia, “the question of the failure to timely file would have been mooted if accepted and replied, the matter appealed from the PCR court was a final decision, as ARCP 32.6 requires both filing and service by date certain to be cognizable, and simply was not.” (Id.). Bernal also contends:
All grounds present federal constitutional foundations, as held by opinions of the Supreme Court of the United States and collectively, as addressed, can demonstrate actual innocence of the allegations as charged, since all of the elements of each of the counts have not been, nor can be, proven beyond a reasonable doubt.(ECF No. 8 at 3).
B. Standard of review of exhausted claims
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant a writ of habeas corpus to a prisoner on a claim adjudicated on the merits in a 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.'” 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 contradicts the governing law established by United States Supreme Court, or if it reached 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). A state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., White v. Woodall, 572 U.S. 415, 419 (2014); Renico v. Lett, 559 U.S. 766, 773 (2010). 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.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016), quoting Harrington, 562 U.S. at 101. See also Dixon v. Ryan, 932 F.3d 789, 801 (9th Cir. 2019), cert. denied, 140 S.Ct. 2810 (2020).
“Deciding whether a state court's decision involved an unreasonable application of federal law or was based on an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018). When the last state court to decide a petitioner's federal habeas claim does not explain its decision in a reasoned opinion, but silently adopts a lower court's decision denying relief, the federal habeas court must “look through” the silent decision to the last reasoned opinion and determine if that opinion's reasoning was an unreasonably application of the controlling federal law. Id. at 1192. When the state court's denial of relief on a particular claim is not accompanied by any court's reasoning for denying the claim, the federal court conducts its own “independent review” of the record, and applies the AEDPA's deferential standard of review to determine if the state court's denial of relief was “objectively reasonable.” See, e.g., Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011) (holding that independent review “is not de novo review of the constitutional issue, but only a means to determine whether the state court decision is objectively unreasonable”); Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir. 2006), citing Williams v. Taylor, 529 U.S. 362 (2000), Pirtle v. Morgan, 313 F.3d 160, 1167 (9th Cir. 2002), and Delgardo v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In this circumstance the “petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief, ” and the reviewing court “must determine what arguments or theories supported or . . . could have supported [] the state court's decision[, ] and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Harrington, 562 U.S. at 101-02 (emphasis added).
On federal habeas review, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1). See also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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, 926 F.3d 1157, 1170 (9th Cir. 2019).
C. Bernal's claims for relief
Bernal exhausted his first and third claims for federal habeas relief by raising the claims in his appeal.
1. Trial court jurisdiction
Bernal asserts “[t]he trial court was without jurisdiction to render judgment or to impose sentence, ” arguing the trial was conducted and his sentence was entered by a Commissioner rather than a superior court judge. Bernal argues the power to convict him and sentence him “are exclusively held by judges, and withheld from Commissioners . . . as specifically addressed in Supreme Court Rule 96(a)(11).” (ECF No. 1 at 5).
In denying this claim the state appellate court found and concluded:
Bernal argues that because the judge who presided over his trial was a commissioner, she lacked the authority to oversee and conduct a jury trial, decide a Rule 20 motion, and administer all parts of the sentencing in his case under Arizona Supreme Court Rule 96(a)(11). We disagree.
Here, the judge who presided over Bernal's trial and sentencing was appointed as a pro tempore judge in accordance with Arizona Revised Statutes (“A.R.S.”) section 12-141. See Maricopa County Bd. of Supervisors, Formal Meeting Minutes 16 (March 21, 2018) []. As a judge pro tempore, she had the same authority as a regularly seated superior court judge. See Ariz. Const. art. 6, § 31(B); A.R.S. § 12-144(D); State v. White, 160 Ariz. 24, 32 (1989).
Next, Bernal argues labeling the judge a commissioner creates an unreliable record on appeal. Labeling the judge a commissioner does not violate A.R.S. § 12-223(B) (requiring the court reporter, upon request, to “certify that [the] transcript is a correct and complete statement of [the] proceedings”) and does not create any arguable issue of law.Bernal, 2019 WL 949007, at *2.
As the Arizona Court of Appeals found when considering this claim on appeal, the Commissioner who presided over Bernal's trial and sentencing was appointed as a superior court judge pro tempore “for the purpose of performing duties of a judge authorized by A.R.S. § 25-121 et seq. and A.R.S. § 12-222.” (ECF No. 7-1 at 213-14). The Commissioner, therefore, had the authority of a regularly seated superior court judge. See Ariz. Const. art.6, § 31(B); Ariz. Rev. Stat. Ann. § 12-144(D); State v. White, 160 Ariz. 24, 32 (Ariz. 1989).
To be eligible for federal habeas corpus relief, a state prisoner must establish that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal habeas corpus relief is not available for errors of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal courts are without jurisdiction to review a state court's applications of its own procedural rules. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998). A petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). “[T]he Supreme Court has long settled that the Fourteenth Amendment does not assure immunity from judicial error or uniformity of judicial decisions.” Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006). Violations of state law or state criminal procedure which do not infringe upon specific federal constitutional protections are not cognizable under section 2254. See, e.g., Estelle v. McGuire, 502 U.S. 62, 68 (1991).The state appellate court's conclusions of state law, such as a commissioner's proper authority to try and sentence Bernal are binding on this Court, and relief may not be granted on this claim.
2. State and federal constitutional violations
Bernal asserts: “The judgment and the sentence were otherwise in violation of the constitutions of the State of Arizona and/or of the United States.” (ECF No. 1 at 7). He maintains the trial record is void because the proceedings were before a Commissioner; further asserts “the court instructed on the ultimate fact of the trial in asserting that the subject substance was a dangerous drug, in violation of” the Arizona Constitution “and thereby of Amendments V and XIV;” asserts the “indictment was principally against a defendant 001, whose name was thereafter redacted, and apparently of the confidential informant;” and also alleges “confrontation violations.”
Bernal raised this claim in his appeal, and the Arizona appellate court found and concluded:
Bernal argues that the superior court erred by instructing the jury that methamphetamine is a dangerous drug, an element of the charged offense. A dangerous drug is defined by statute and includes methamphetamine. A.R.S. § 13-3401(6)(c)(xxxviii). Therefore, the legislature has determined that it is a dangerous drug. See State v. Light, 175 Ariz. 62, 63-64 (App. 1993) (finding the state need not prove that methamphetamine is a dangerous drug because the legislature has already made that determination). The court did not err by stating methamphetamine is a dangerous drug.State v. Bernal, 2019 WL 949007, at *3 (Ariz.Ct.App. Feb. 26, 2019).
Bernal did not properly exhaust these claims by presenting them to the Arizona Court of Appeals as claims of the violation of his federal right to due process, in a procedurally correct manner. Additionally, as previously stated, a petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford, 110 F.3d at 1389. An asserted violation of state law does not, without more, rise to the level of a defendant's right to due process of law under either the Fifth or the Fourteenth Amendments. See Little, 449 F.3d at 1082. Furthermore, a federal habeas court may not grant relief on a claim that the state court erred in allowing particular evidence when introduction of the evidence does not violate a specifical federal constitutional right and, in this matter, the introduction of the audio tape evidence did not present a Confrontation Clause issue.
In its response in the Rule 32 action the State noted, in the context of Bernal's Rule 20 claim: “Elcock testified to and a recording was played of Bernal negotiating the purchase price of the methamphetamine, ” and that “[t]he officers testified as to the events on the recording and were subject to cross-examination.” (ECF No. 7-1 at 171, 178).
3. Insufficiency of the evidence
Bernal contends: “The state failed to demonstrate sufficient evidence to prove either offense charged by indictment, or to impose sentence thereupon, beyond a reasonable doubt. (Actual innocence).” (ECF No. 1 at 8).
In his appeal Bernal asserted the state trial court erred by denying his motion for a directed verdict. The Arizona Court of Appeals denied relief, finding:
. . . “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). A Rule 20 motion should only be granted if “there is no substantial evidence to support a conviction.” Ariz. R. Crim. P. 20(a)(1). “‘Substantial Evidence' under Rule 20 is ‘such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'” Florez, 241 Ariz. at 124, ¶ 7 (quoting Mathers, 165 Ariz. at 67).
Bernal argues that the court erred by denying his Rule 20 motion because both officers testified that he did not personally sell the methamphetamine. Under A.R.S. § 13-303(A)(3), “[a] person is criminally accountable for the conduct of another if . . . [t]he person is an accomplice of such other person in the commission of an offense.” The jury was properly instructed on accomplice liability.
Based on the facts before us, we find substantial evidence supports the jury's verdict. Both officers testified that Bernal was present during the sale of the methamphetamine. Elcock testified to and a recording was played of Bernal negotiating the purchase price of the methamphetamine. Further, Elcock and a DPS expert testified that the sold substance tested positive for methamphetamine. The superior court did not err by denying Bernal's Rule 20 motion.Bernal, 2019 WL 949007, at *2-3.
The governing law regarding an insufficiency of the evidence claim is stated in Jackson v. Virginia, 443 U.S. 307 (1979). Pursuant to Jackson and its progeny:
A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.”Cavazos v. Smith, 565 U.S. 1, 2 (2011). Pursuant to the AEDPA and its application in the context of Jackson claims, a federal court may overturn a state court decision rejecting a sufficiency-of-the-evidence challenge only if the state court decision was objectively unreasonable. See Id. This “double dose of deference . . . can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). See also Coleman v. Johnson, 566 U.S. 650, 651 (2012) (“We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.”).
“AEDPA requires a state prisoner to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.” Burt v. Titlow, 571 U.S. 12, 19-20 (2013) (internal quotations and alterations omitted). In considering an insufficiency of the evidence claim, the federal habeas court must assume that the trier of fact resolved any evidentiary conflicts in favor of the prosecution and must defer to such resolution. Jackson, 443 U.S. at 326. Even when the evidence is “almost entirely circumstantial and relatively weak, ” it may be sufficient to support a conviction. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).
The Arizona Court of Appeals' determination that there was sufficient evidence to support Bernal's conviction, pursuant to Arizona law, was not lacking in justification. See Estelle, 502 U.S. at 67-68 (“Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). The state appellate court found the prosecution had presented sufficient evidence to find Bernal guilty as an accomplice, a conclusion not lacking in justification.
With regard to Bernal's claim of “actual innocence, ” in McQuiggin v. Perkins the Supreme Court declared that it had not “resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” 569 U.S. 383, 392 (2013), citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993). The Supreme Court has postulated that a claim of actual, factual innocence based on newly discovered evidence might be cognizable, but only in capital cases. See Herrera, 506 U.S. at 417. Notably, even claims of actual innocence based on “newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[T]he existence merely of newly discovered evidence relevant to the innocence of a state prisoner is not a ground for federal habeas corpus relief.”). The Ninth Circuit recognizes an exception to this rule where a defendant produces “affirmative proof of actual innocence based on newly discovered evidence.” Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). However, the Ninth Circuit also requires that a habeas petitioner asserting a freestanding claim of actual innocence make a “stronger showing than insufficiency of the evidence to convict” showing adopted by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). The required showing must go “beyond demonstrating doubt about [the petitioner's] guilt, and must affirmatively prove that he is probably innocent.” Id. (citation omitted). Post-conviction evidence serving only to “undercut the evidence presented at trial” does not suffice to meet this standard. Id. at 477; see also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (finding habeas relief unavailable where “the totality of the new evidence does not undermine the structure of the prosecution's case”); Swan v. Peterson, 6 F.3d 1373, 1384-85 (newly-discovered evidence warrants habeas relief only when it bears on the constitutionality of the conviction and probably would produce an acquittal) (citations omitted).
One Ninth Circuit Court of Appeals panel described the holding in Herrera as follows: The majority opinion in Herrera, however, assumed for purposes of decision that “a truly persuasive” demonstration of actual innocence would render the execution of a defendant unconstitutional, but that “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id. at 417 []. As we have noted, however, a majority of the Justices in Herrera would have supported a claim of free-standing actual innocence. [] We also held that “a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Id. Jackson v. Calderon, 211 F.3d 1148, 1164-65 (9th Cir. 2000) (internal citations omitted).
Bernal does not present new evidence of his “actual innocence, ” but again asserts his legal innocence rather than his factual innocence of the crimes of conviction. Additionally, Bernal has not established any constitutional error in his criminal proceedings. Accordingly, habeas relief should not be granted on this claim.
4. Error in Bernal's appeal and action for state post-conviction relief
Bernal maintains: “Constitutional violations obstructed relief on direct appeal and post-conviction review.” (ECF No. 1 at 10). This assertion does not state a claim for federal habeas relief. See Langford, 110 F.3d at 1389 (“[A]lleged errors in the application of state law are not cognizable in federal habeas corpus.”); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”). Federal courts are without jurisdiction to review state court applications of state procedural rules. E.g., Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998).
III. Conclusion
Bernal did not properly exhaust all of his federal habeas claims in the state courts, and he fails to show cause for or prejudice arising from his procedural default of some of his claims. Additionally, Bernal's defaulted claims are without merit. The state appellate court's denial of Bernal's properly exhausted claims was not contrary to nor an unreasonable application of federal law. Accordingly, IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
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 Bernal 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. Dated this 12th day of April, 2021.