Opinion
CV-22-00533-PHX-SRB (ESW)
05-26-2023
Wade Eugene Bradford, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Wade Eugene Bradford's (“Petitioner”) Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 18). Respondents have filed a Limited Answer (Doc. 32), to which Petitioner has replied (Doc. 37). For the reasons explained herein, it is recommended that the Court deny habeas relief without holding an evidentiary hearing.
I. BACKGROUND
In 2010 and 2012, the State of Arizona charged Petitioner with two separate murders of Petitioner's ex-girlfriends, N.A. and E.P. (Doc. 32-1 at 6-8; Doc. 32-3 at 31-33). On February 5, 2014, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty of first-degree murder and aggravated assault of exgirlfriend N.A. in Case No. CR2010-048445. (Doc. 32-1 at 155-57). The trial court sentenced Petitioner to natural life on the first-degree murder count, followed by a ten-year sentence on the aggravated assault count. (Id. at 223-26).
In October 2015, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty of first-degree murder and kidnapping of ex-girlfriend E.P. in Case No. CR2012-010181. On February 12, 2016, the trial court sentenced Petitioner to a term of natural life on the first-degree murder count and a concurrent prison term of eighteen years on the kidnapping count. (Doc. 32-4 at 38-42).
The Arizona Court of Appeals affirmed Petitioner's convictions and sentences in both cases. (Doc. 32-1 at 256-62; Doc. 32-4 at 121-27).
Petitioner filed a Notice of Post-Conviction Relief (“PCR”) in each case. (Doc. 321 at 268-70; Doc. 32-4 at 139-41). Petitioner's appointed PCR counsel could not find a colorable claim for relief in either case. (Doc. 32-1 at 275-76; Doc. 32-4 at 215-16). Petitioner filed pro se PCR Petitions in both cases raising numerous claims, including a denial of due process, ineffective assistance of counsel, speedy trial violations, prosecutorial misconduct, and “judge issues.” (Doc. 32-2 at 2-73; Doc. 32-4 at 218-84). The trial court dismissed both PCR Petitions. (Doc. 32-2 at 176-83; Doc. 32-4 at 364-69). Petitioner sought further review by the Arizona Court of Appeals. On April 1, 2021, the Arizona Court of Appeals denied relief in both cases. (Doc. 32-3 at 14-15). On January 24, 2022, the Arizona Supreme Court denied Petitioner's Petition for Review. (Id. at 11).
In April 2022, Petitioner timely initiated this habeas proceeding. (Doc. 1). In a June 2022 Order (Doc. 19), the Court allowed the Amended Petition (Doc. 18) to proceed. The Amended Petition references Petitioner's “Affidavit” (Doc. 9) filed on April 11, 2022. Respondents filed a Limited Answer (Doc. 32) on October 3, 2022. On November 2, 2022, Petitioner filed a Reply (Doc. 32). As explained below, the undersigned concurs with Respondents that Grounds One and Two do not present cognizable habeas claims and Grounds Three through Ten are procedurally defaulted without excuse. However, Respondents have liberally construed Ground Five as presenting a fully exhausted ineffective assistance of counsel claim alleging that Petitioner's trial counsel failed to investigate Petitioner's mental health history. (Doc. 32 at 34-39). The undersigned agrees with Respondents that the claim is without merit.
II. GROUNDS ONE AND TWO DO NOT PRESENT COGNIZABLE HABEAS CLAIMS
In Ground One, Petitioner asserts that he was “[d]eprived access-to-court in 28 USCS 2254 process.” (Doc. 18 at 8). In Ground Two, Petitioner asserts “[deprivation of access to the court following his convictions.” (Id. at 19).
Federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)).
Petitioner explains that the “core fact” underlying Ground One is that “Respondents have intentionally not facilitated access to seized and digital files in violation of federal access-to-court rights.” (Doc. 37 at 2). In support of Ground Two, Petitioner asserts that the “facts demonstrate Respondents intentionally interfered with [Petitioner's] access to case files; including the seizing, tampering and removing relevant documents prepared for the appeal process.” (Id. at 3-4). In support of Grounds One and Two, Petitioner cites civil rights cases brought pursuant to 42 U.S.C. § 1983. (See, e.g., Doc. 37 at 2-3, citing Bounds v. Smith, 430 U.S. 817 (1977); Lewis v. Casey, 518 U.S. 342 (1996); and Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011)).
Grounds One and Two do not allege that Petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. “To seek relief regarding a denial of access to the courts, Petitioner must file an action pursuant to 42 U.S.C. § 1983; he may not seek such relief pursuant to habeas corpus.” Lopez v. Ryan, 2:09-cv-01549-JAT (D. Ariz. Aug. 28, 2009), ECF No. 3.
The undersigned concludes that Respondents correctly argue in their Limited Answer (Doc. 32 at 18) that Grounds One and Two are not cognizable habeas claims. See See Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“constitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief, fall outside [the] core [of habeas relief] and may be brought pursuant to § 1983”); Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . .; requests for relief turning on the circumstances of confinement may be presented in a § 1983 action.”); Clement v. Hooks, No. 1:19CV531, 2021 WL 2634617, at *14 (M.D. N.C. June 25, 2021) (finding claim non-cognizable in § 2254 proceeding because the claim “concerns actions taken by entities after the conclusion of Petitioner's underlying criminal cases” and thus “correction of the errors asserted would not affect Petitioner's underlying convictions and sentences”); Harris v. Williams, No. CV 19-0297-KD-MU, 2021 WL 6414691, at *9 n.12 (S.D. Ala. Dec. 9, 2021) (“As for his claim that his Fourteenth Amendment right to due process was violated because he was denied meaningful access to the courts, this claim does not sound in habeas corpus and would need to be dismissed.”); Griego v. Inch, No. 3:17CV66-LC, 2019 WL 2093245, at *1 (N.D. Fla. Apr. 1, 2019) (“This type of claim [denial of access to the prison law library and to the courts] does not sound in habeas corpus, but in civil rights under 42 U.S.C. § 1983.”), report and recommendation adopted, 2019 WL 2090000 (N.D. Fla. May 13, 2019); Williams v. McBrayer, No. 1:18-CV-370, 2018 WL 1221861, at *2 (N.D.Ga. Feb. 12, 2018) (“Habeas and civil rights cases are ‘mutually exclusive: if a claim can be raised in a federal habeas petition, that same claim cannot be raised in a separate . . . civil rights action.' . . . Because claims regarding law library access and grievances can be raised in a civil rights action, those claims cannot be raised in a habeas petition.”), report and recommendation adopted, 2018 WL 1211521 (N.D.Ga. Mar. 8, 2018).
For the above reasons, the undersigned recommends that the Court dismiss Grounds One and Two for failure to state a cognizable claim for habeas relief under 28 U.S.C. § 2254. See Lopez v. Ryan, 2:09-cv-01549-JAT (D. Ariz. Aug. 28, 2009), ECF No. 3 (finding that habeas petitioner's claims alleging that the petitioner was denied access to the courts because prison officials prevented him from presenting his claims to the state courts were not cognizable in a § 2254 proceeding and dismissing the claims).
III. GROUNDS THREE THROUGH TEN ARE PROCEDURALLY DEFAULTED
With the exception of one fully exhausted ineffective assistance of counsel claim that Respondents have liberally construed Ground Five as presenting.
A. Legal Standards Regarding Procedurally Defaulted Habeas Claims
1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is selfevident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See Id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).
B. Analysis
The Court's Screening Order explains that Grounds Three through Ten allege that Petitioner was deprived of:
(3) liberty without due process;
(4) the right to be “competent in [the] trial process”;
(5) the effective assistance of trial, appellate, and postconviction counsel[.]
(6) access to the court in the trial process;
(7) a speedy trial;
(8) “due process [due to] pre-indictment delay”;
(9) the right to “self[-]represent”; and
(10) a fair trial.(Doc. 19 at 2).
To fully exhaust a habeas claim, a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). PCR claims of “Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
“It is the [habeas] petitioner's burden to prove that he has exhausted available state remedies.” Keating v. Hood, 922 F.Supp. 1482, 1490 (C.D. Cal. 1996) (citing Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982)); see also Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (“The burden of proving that a claim has been exhausted lies with the petitioner.”); Olson v. McKune, 9 F.3d 95 (10th Cir. 1993) (explaining that a “state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted available state remedies”) (citations omitted).
Here, Petitioner concedes in the Amended Petition that he did not present Grounds Three through Ten to the Arizona Court of Appeals. (Doc. 18 at 26, 32, 39, 44, 46, 49, 51, 53). In their Limited Answer, Respondents observe that Petitioner did fully exhaust in state court an ineffective assistance of counsel claim alleging that Petitioner's trial counsel failed to investigate Plaintiff's mental health history. (Doc. 32 at 34). To the extent that the Court may find that the Amended Petition properly pleads that claim, the claim is without merit for the reasons discussed in Section IV below.
To plead a cognizable federal habeas claim, a petitioner must set forth in his or her petition the facts supporting the specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. “‘[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of constitutional error.'” Advisory Committee Note to Rule 4, foll. 28 U.S.C. § 2254 (citation and internal quotation marks omitted); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254 habeas petitions is “more demanding” than the notice pleading allowed under Fed.R.Civ.P. 8).
A habeas claim “is procedurally defaulted if it has not been exhausted in state court and would now be barred under state procedural rules.” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008). If Petitioner returned to state court and presented Grounds Three through Ten in a PCR Petition, the PCR Petition would be untimely and successive under adequate and independent state procedural rules. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a), 32.2(b), 32.4, 32.16(a)(1). A state post-conviction action is futile where it is time-barred. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997). The undersigned finds that with the exception of the ineffective assistance of counsel claim discussed in Section IV below, Grounds Three through Ten are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
C. Petitioner's Procedural Defaults are Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
1. “Cause and Prejudice” Exception
“Ineffective assistance of constitutionally required counsel (i.e. trial and appellate counsel) may constitute cause for failing to properly exhaust claims in state courts and excuse a procedural default.” Bassett v. Ryan, No. CV19-8142-PCT-DLR-JFM, 2021 WL 6427668, at *17 (D. Ariz. Dec. 1, 2021) (citing Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998)); Davila v. Davis, 582 U.S. 521, 528-29 (2017) (“It has long been the rule that attorney error is an objective external factor providing cause for excusing a procedural default only if that error amounted to a deprivation of the constitutional right to counsel.”).
However, “[t]o constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim.” Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). “[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000); see also Arrendondo v. Neven, 763 F.3d 1122, 1140 (9th Cir. 2014) (holding that “to assert” that appellate counsel's ineffectiveness constituted cause to excuse a procedural default, a petitioner “must first exhaust in state court the claim that his appellate counsel was constitutionally inadequate”).
Here, Petitioner has not properly exhausted his state remedies on any claim of ineffective assistance of appellate counsel. Further, the only claim of ineffective assistance of trial counsel in which Petitioner has properly exhausted his state remedies is the meritless claim discussed in Section IV below. The undersigned concludes that none of Petitioner's assertions of ineffective assistance of counsel provide cause to excuse Petitioner's procedural defaults. See, e.g., Murray v. Howell, No. 21-15104, 2022 WL 2593309, at *2 (9th Cir. July 8, 2022) (“Petitioner's claim of ineffective assistance of appellate counsel cannot serve as cause to overcome the default of ground one because Petitioner failed to fairly present his ineffective assistance claim to the Nevada state courts for review, and it is procedurally defaulted.”) (citing Edwards, 529 U.S. at 453).
Petitioner's status as a pro se litigant does not exempt Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (explaining that “petitioner may possess below-average intelligence, have no formal legal training, or have filed the initial habeas petition pro se” is not enough to excuse procedural default); Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004) (finding that pro se status, ignorance of law and procedural requirements, limited access to prison library, and unfamiliarity with the English language insufficient to establish cause).
Petitioner has not established that the purported lack of access to legal materials resulted in an inability to assert his claims. As Respondents correctly observe (Doc. 32 at 27), the record reflects that Petitioner had an opportunity to access his legal files and legal services. In a May 2014 minute entry denying Petitioner's motion requesting a paralegal, the trial court explained:
Defendant has advisory counsel; he has also had numerous investigators appointed to assist him. But he says that he needs a paralegal to help with legal research because: 1) the Inmate Legal Services (ILS) unit of the Maricopa County Sheriff's Office (MCSO) provides only “limited” legal research; and 2) advisory counsel does not “provide legal research.” Motion, at 1. Neither claim is persuasive.
First, Defendant's own filings demonstrate that ILS provides Defendant with reasonable law library access. See Exhs. H, I to Defendant's Motion to Weigh Heavily Defendant's] Arizona and U.S. Constitutional Rights, filed August 28, 2013 (in companion case CR2010-048445-001). ILS permits Defendant access to Arizona cases, statutes, recommended jury instructions (RAJIs) and reference materials (including the Arizona Trial Handbook). Id.
Cross referencing materials and digests are also available, though it appears Defendant does not understand their use. ILS also allows Defendant to request “Natural
Language” (i.e., non-Boolean) searches in Westlaw's Arizona, Federal Cases and Allcases databases. Defendant therefore has far greater library access than the “paging” system gave the defendant in Knight v. Superior Court, the Arizona authority on which he relies.[ ] 161 Ariz. 551, 552-555, 779 P.2d 1290, 1291-94 (App. 1989) (holding that appointment of paralegal was appropriate where “paging” system in jail required inmates to list “specific cases or statutes” for photocopying, without access to digests or cross reference materials).
Defendant notes that ILS has been slow to respond to his requests. But his requests of the jail have been comprehensively unrealistic. . . .(Doc. 32-3 at 51). Respondents are correct that the record shows that Petitioner “was not hampered in filing pleadings.” (Doc. 32 at 27); see e.g., Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991) (finding no “cause” where despite lack of resources generally, pro se prisoner had not shown personal deprivation, and the prisoner's pro se pleadings reflected adequate access to and use of legal materials).
It is noted that Petitioner states in his Amended Petition that the prison is not providing “assistance for mental condition disability.” (Doc. 18 at 23-24). Petitioner states that he is “currently treating his disability by taking strong shots of coffee, aspirin, acetaminophen, and Vitamin D3” that Petitioner purchases through the commissary. (Id. at 25). Petitioner's filings reflect an ability to cogently present legal arguments. In a December 2015 minute entry, the trial court stated that its “extensive observations of [Petitioner] before and during trial revealed no hint of the Job-like circumstances he says he endured. He performed reasonably well on his own behalf and continued his prolific filings both before and during trial.” (Doc. 32-4 at 35).
The undersigned finds that Petitioner has failed to establish that his procedural defaults are “due to an external objective factor that cannot fairly be attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural defaults. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
2. Miscarriage of Justice Exception
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The miscarriage of justice exception is also referred to as the “Schlup gateway.” Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003).
To the extent that Petitioner may assert the Schlup gateway, Petitioner has not proffered any new reliable evidence to support actual innocence. The undersigned recommends that the Court find that Petitioner cannot pass through the Schlup gateway to excuse his procedural defaults. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324). Consequently, the undersigned recommends that the Court dismiss Grounds Three through Ten of the Amended Petition with prejudice. However, to the extent that Ground Five may be construed as presenting an ineffective assistance of counsel claim based on trial counsel's failure to investigate Petitioner's mental health history, it is recommended that the Court deny the claim on the merits for the reasons discussed in the following section.
IV. THE STATE COURTS REASONABLY REJECTED PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM ALLEGING A FAILURE TO INVESTIGATE PETITIONER'S MENTAL HEALTH
As mentioned, Ground Five of the Amended Petition states only “[d]eprived effective assistance of counsel.” (Doc. 18 at 39). Among the statements made in the section titled “Ground Five Facts” are the assertions that Petitioner's trial counsel “did not investigate [Petitioner's] mental condition at time of the alleged offense” and “did not investigate [Petitioner's] significant psychotic history with evidence of traumatic brain damage from seven years of football with concussion in the 1970's.” (Id. at 40). To the extent the Court may find that Ground Five properly pleads an ineffective assistance of counsel claim alleging the failure to investigate Petitioner's mental health, Respondents correctly observe that this claim was presented to the trial court, Arizona Court of Appeals, and Arizona Supreme Court in Petitioner's PCR proceeding. (Doc. 32 at 34; Doc. 32-2 at 13-14; Doc. 32-2 at 189; Doc. 32-3 at 20; Doc. 32-4 at 234-35). Although fully exhausted, the claim is meritless.
A. Reviewing Habeas Claims on the Merits
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. [R]esulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. [R]esulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to the first entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(1) above, “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 40506 (2000)).
As to the second entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(2) above, factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). A state court's determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of the state court's decision. Richter, 562 U.S. at 101; Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
B. Reviewing the Merits of Ineffective Assistance of Counsel Claims
The “clearly established federal law” for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In assessing the performance factor of Strickland's two-part test, judicial review “must be highly deferential” and the court must try not “to second-guess counsel's assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In other words, it must be shown that the “likelihood of a different result [is] substantial, not just conceivable.” Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
In the habeas context, the issue is whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted). Hence, a review of Strickland claims under AEDPA is “doubly deferential.” Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (“We take a ‘highly deferential' look at counsel's performance [pursuant to Strickland, 466 U.S. at 689], through the ‘deferential lens of § 2254(d)'. . . .).
C. Analysis
“[T]he criminal trial of an incompetent defendant violates due process.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California, 505 U.S. 437, 453 (1992)). A person is competent to stand trial if he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” and “has a rational as well as factual understanding of the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (internal quotation marks and citation omitted). Counsel's failure to move for a competency hearing violates a defendant's right to effective assistance of counsel when (1) “there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency,” and (2) “there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.” Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)). The Supreme Court has explained that there are “no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” Drope v. Missouri, 420 U.S. 162, 180 (1975).
Here, Respondents correctly assert that the state courts reasonably rejected Petitioner's claim that he received ineffective assistance of counsel based on an alleged failure to investigate Petitioner's mental health history. On September 8, 2010, Petitioner's trial counsel filed a “Request for a Rule 11 Evaluation” in which counsel moved the trial court “to order a preliminary examination to determine Defendant's competency to stand trial, enter a plea, or assist his attorney and to determine defendant's mental condition at the time of the alleged offense.” (Doc. 32-1 at 10). Petitioner's trial counsel explained in the filing:
This motion is made for the following reasons. After several jail visits with Mr. Bradford, defense counsel believes that a mental illness, defect, or disability prevents Mr. Bradford from understanding the proceedings and/or assisting in his own defense. Defendant recently advised defense counsel that he is currently seeing a psychiatrist in custody. He stated that he is having problems concentrating and sleeping. Defendant stated to his counsel that he feels there is something wrong with his brain and that he is having tunnel vision.
Mr. Bradford has been prescribed medications to help with these symptoms but is unable to specifically recall what medications. Finally, he also stated that he has had past problems with depression and suffered multiple concussions in the past. Based on this information, defense counsel respectfully requests to have Mr. Bradford evaluated to
determine his competency before proceeding any further with his case.(Id. at 10-11). The trial court granted counsel's request for a competency evaluation of Petitioner. After reviewing written reports by two doctors, the trial court determined that Petitioner “understands the proceedings and is able to assist with [Petitioner's] defense.” (Id. at 14-15).
In rejecting Petitioner's PCR claim that his trial counsel failed to investigate his mental condition, the trial court noted that Petitioner provided a copy of a 2018 neuropsychological report recommending that Petitioner undergo brain imaging and evaluation by a neurologist. (Doc. 32-4 at 368-69). The trial court further noted that Petitioner “provides no such evidence, leaving the Court to speculate what it would have shown.” (Id. at 369). The trial court explained that the PCR Petition “is long on cataloging the Department of Corrections' and his attorneys' perceived shortcomings, and fatally short on demonstrating a provable reality - i.e., that anything they did or failed to do caused a wrongful conviction. Such speculation does not establish a colorable claim for relief.” (Id.). The Arizona Court of Appeals affirmed the trial court's ruling. (Doc. 32-3 at 15). The Arizona Supreme Court denied Petitioner's request for further review. (Id. at 11).
To reiterate, Petitioner's trial counsel requested that Petitioner undergo a Rule 11 evaluation, which the trial court granted. Even if Petitioner's trial counsel had sought and received an additional competency evaluation, Petitioner fails to establish that the result of that hearing would have found Petitioner incompetent to stand trial. “When the alleged error by counsel is a failure to properly investigate a client's competency, the prejudice prong is evaluated by determining whether a petitioner would have been found competent had he been evaluated for competency.” Harris v. Wong, No. 06-CV-1747 JLS JMA, 2010 WL 546071, at *11 (S.D. Cal. Feb. 10, 2010) (citing Grant v. Brown, 312 Fed.Appx. 71, 73 (9th Cir. 2009); Charles v. Farwell, 263 Fed.Appx. 644, 646 (9th Cir. 2008)); McKenzie v. Shinn, No. CV-20-08179-PCT-DLR-JZB, 2021 WL 5042992, at *8 (D. Ariz. Apr. 15, 2021) (finding that habeas petitioner failed to satisfy prejudice prong of Strickland test where the petitioner “received a Rule 11 evaluation and was found competent to stand trial,” and failed to “allege any evidence that would have been discovered by trial counsel during the course of an ‘adequate inquiry'” into the petitioner's competency that would result in a different competency determination”); Garfias-Ortega v. Ryan, No. CV-13-01450-PHX-JJT, 2014 WL 3516919, at *19 (D. Ariz. July 16, 2014) (“Petitioner has not established prejudice because he received a Rule 11 competency evaluation . . . and the trial court found him competent to proceed.”); Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (petitioner must “affirmatively prove prejudice”) (citing Strickland, 466 U.S. at 693).
The undersigned finds that Petitioner has failed to show that the state courts' rejection of Petitioner's ineffective assistance of counsel claim alleging that his trial counsel failed to adequately investigate his mental health history is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. Therefore, to the extent the Court may find that the Amended Petition properly pleads this ineffective assistance of counsel claim, it is recommended that the Court deny it.
V. EVIDENTIARY HEARING
Petitioner “requests a hearing at the appropriate stage.” (Doc. 37 at 19). AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
VI. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court dismiss Grounds One and Two of the Amended Petition for failure to allege cognizable habeas claims.
IT IS FURTHER RECOMMENDED that the Court dismiss Grounds Three through Ten of the Amended Petition. However, to the extent that the Court may construe Ground Five of the Amended Petition as properly pleading a fully exhausted ineffective assistance of counsel claim alleging that Petitioner's trial counsel failed to investigate Petitioner's mental health history, it is recommended that the Court deny the claim on the merits.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).