Opinion
CV-19-0963-PHX-SPL (JFM)
10-09-2020
Michael Eugene Brooks, Petitioner v. Charles L. Ryan, et al., Respondents.
Report & Recommendation on Petition for Writ of Habeas Corpus and Motion to Stay
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In August 2009, a police internet investigation for child pornography led officers to an internet subscriber who turned out to be Petitioner. A search warrant was executed at Petitioner's home. Petitioner admitted to having hundreds of child pornography images on his computer. A forensic examination of Petitioner's computer revealed (under his user account) searches for child pornography, 255 child pornography videos on an external hard drive which listed Petitioner's account as the owner, and links to at least some such videos in the player history on Petitioner's computer. A forensic examiner concluded the people and events in the ten videos referenced in the indictment were real, and a pediatrician concluded the children depicted in them were prepubescent. (Exh. P, Mem. Dec. 6/9/15 at ¶¶ 1-7 (summarizing facts).) (Exhibits to the Answer, Doc. 15, are referenced herein as "Exh. ___.") B. TRIAL PROCEEDINGS
Over two years later, on October 19, 2011, Petitioner was charged with 10 counts of sexual exploitation of a minor, each count referencing one of the child pornography videos. (Exh. A, Indictment.) He proceeded to trial on January 23, 2014. (Exh. B, R.T. 1/23/14.)
For trial, the case agent prepared a CD containing the ten charged videos. During trial and for each count, the agent read from his investigative report the video's file name, its duration, and summarized the video's contents. The State correspondingly played for the jurors a representative clip of each video. The State later offered the CD into evidence, Brooks did not object, and the trial court admitted it.(Exh. P, Mem Dec. 6/9/15 at ¶ 8.) Petitioner was found guilty on all ten charges. (Exh. K, R.T. 2/11/14; Exh. P, Mem. Dec. 6/9/15 at ¶ 9.)
Petitioner filed a Motion for New Trial on the basis that Petitioner's computer was not passworded or firewalled and accessible in the home, his unknowing downloading of child pornography while viewing adult pornography, Petitioner's absence from the home at the time of the downloads, discrepancies in the various identifications of the external hard drive, prosecutorial misconduct, and juror misconduct. (Petition, Doc. 1, at Exh. 8.) The motion was denied.
On June 9, 2015, Petitioner was convicted and sentenced to consecutive, mitigated 12-year terms on each count, an effective sentence of 120 years. (Exh. P, Mem. Dec. 6/9/15 at ¶ 9.) The trial court found mitigation based on Petitioner's otherwise exemplary life, family and community support, and age. It found those offset by the uncharged offenses and the disturbing nature of the charged videos. The sentence imposed was less than the presumptive terms of 17 years argued for by the probation office and the prosecution (Exh. L, R.T. 5/9/14 at 5), and greater than the minimum terms of 10 years. See Ariz. Rev. Stat. § 13-705(D). C. DIRECT APPEAL PROCEEDINGS
Petitioner filed a direct appeal, arguing through counsel that: (1) "structural error" occurred because the CD provided to the jury contained 90 minutes of child pornography never seen by the judge or played in court; (2) Plaintiff's life sentence was "cruel and unusual punishment." (Exh. N, Opening Brief.) The Arizona Court of Appeals found the CD properly admitted, and thus properly provided to the jury, and that the Arizona's Supreme Court ruling on the constitutionality of the sentencing was determinative. (Exh. P, Mem. Dec. 6/9/15.)
Petitioner sough review by the Arizona Supreme Court. (Petition, Doc. 1, at Exh. 4, Pet. Rev.) That court "[b]y order, dated January 6, 2016, denied the petition for review." (Exh. Q, Mandate 2/9/16.) D. POST-CONVICTION RELIEF PROCEEDINGS
On February 3, 2016 (after denial of the direct appeal petition for review), Petitioner filed through retained counsel a Notice of Request for Post-Conviction Relief (Exh. R). Petitioner then filed through counsel a Petition for Post-Conviction Relief (Exh. S) which argued ineffective assistance of counsel based on: (1) insufficient investigation on work history and an alibi witness; (2) failure to communicate or adequately advise on a plea offer; (3) failure to request a jury instruction, limiting the use of other act evidence; (4) failure to adequately advise on Petitioner's right to testify and to prepare him to testify; (5) failure to call a defense witness, a co-worker. He also filed an Amended Petition for Post-Conviction Relief (Petition, Doc. 1, at Exh. 5) arguing he was "factually innocent," and arguing his claims of ineffective assistance of trial counsel.
The PCR court considered both petitions and summarily dismissed both (i.e. without an evidentiary hearing) on the basis that the claims were not "colorable." (Exh. X, M.E. 12/16/16.)
Petitioner filed through retained counsel a Petition for Review (Exh. Y) challenging the summary rejection of the claim of ineffectiveness based on communication of a plea offer and advice on the range of sentence. The Arizona Court of Appeals granted review, but denied relief. (Exh. Z, Mem. Dec. 1/4/18.)
Petitioner filed a Petition for Review by the Arizona Supreme Court, raising the same issues presented to the Arizona Court of Appeals. (Petition, Doc. 1, at Exh. 7.) That petition was summarily denied on August 24, 2018. (Exh. AA, Order 8/24/18). The mandate of the Arizona Court of Appeals issued December 28, 2018. (Exh. BB, Mandate 12/28/18.) E. TRIAL DISCOVERY PROCEEDINGS
On September 5, 2018, after the issuance of the mandate in the PCR proceeding, Petitioner filed a "Motion to Allow Defense Expert Bryan Neumeister to Forensically Examine the State's Evidence." The Court denied the motion on September 25, 2018, on the basis that the appeal and PCR proceedings were terminated, and no other post-conviction proceeding was pending. (Amend. Reply, Doc. 23, Exh. A, M.E. 9/25/18.)
In the Petition, Petitioner argues that the appellate court decision was rendered on September 15, 2018. (Petition, Doc. 1 at 13 (Ground 8 - Hard Drive).) He argues in his Amended Reply that his Petition for Review was pending when it was denied, citing Exhibit Y, his PCR Petition for Review. (Amend. Reply, Doc. 23 at 6.) The record before this Court, as reflected in the foregoing findings, belies that contention. Decisions had already issued from the Arizona Court of Appeals (Exh. Z, Mem. Dec. 1/4/18) and the Arizona Supreme Court (Exh. AA, Order 8/24/18). The only thing incomplete at that juncture was the appellate court's mandate (Exh. BB, Mandate 12/28/18). F. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case less than six months later, by filing his pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 13, 2019 (Doc. 1 ). Petitioner's Petition asserts the following 11 grounds for relief:
(1) Petitioner's sentence violates the Eighth Amendment because it is disproportionate to the crime;(Order 6/28/19, Doc. 1 at 1-2.) Respondents parse Ground 3 into the following five separate claims of ineffectiveness:
(2) Petitioner's Sixth Amendment rights were violated when the trial court erroneously admitted two Compact Discs (CDs) into evidence and when the jury listened to a CD from another case during its deliberations;
(3) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to conduct a pretrial investigation and for failing to communicate a plea offer to Petitioner;
(4) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to investigate and obtain timesheets from Petitioner's employer;
(5) Petitioner is actually innocent;
(6) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to call a key witness;
(7) There are no records of a Donald hearing or settlement conference, and multiple affidavits were disregarded;
(8) Plaintiff's counsel was denied access to a hard drive;
(9) Detective Thorley offered inconsistent testimony regarding the contents of a hard drive;
(10) The prosecutor brought up race "to an all non-black jury"; and
(11) During his initial contact with Detective Thorley, Petitioner stated that he could possibly have "1 or 2" child pornography files on his computer, it was Detective Thorley who said Petitioner had "2 - 5 hundred" such files.
a. failing to do adequate pretrial investigation(Answer, Doc. 15 at 6-7.) Petitioner does not object to this construction, and the undersigned adopts it referencing the subparts as Grounds 3A, 3B, etc.
b. failing to call a potential alibi witness named "Kristi"
c. failing to admit documentation to establish Brooks's work schedule.
d. failing to communicate a plea offer to Brooks.
e. failing to prepare Brooks for testifying.
In his Amended Reply, Petitioner's counsel parses Ground 7 (settlement conference) into two separate claims of ineffectiveness:
Ground 7a: There were no records of a settlement conference.(Amend. Reply, Doc. 23 at 3.) The undersigned adopts counsel's construction, referencing the subparts as Grounds 7A and 7B.
Ground 7b: The PCR court should have accepted as true the affidavits of Brooks and his wife.
Response - On September 23, 2019, Respondents filed their Answer (Doc. 15). Respondents argue: (a) Petitioner has procedurally defaulted his state remedies on Ground 3A, 3B, 3C, 3E, and 4-11; (b) Grounds 2, 5, and 7-11 are not cognizable federal claims; and (c) Grounds 1 and 3D are without merit
Reply and Motion to Stay - On December 13, 2019, Petitioner filed through counsel an amended Reply and Motion to Stay and Abey (Doc. 23). Petitioner argues: (a) his petition is timely; (b) Grounds 1, 2, 3D, 7 were properly exhausted; (c) Grounds 9, 10 and 11 are procedurally defaulted and are withdrawn; (d) Grounds 2 and 7 are cognizable; and (e) Grounds 1, 2, 3D and 7 are meritorious.
Response on Motion to Stay- Respondents were given a deadline to reply to the Motion to Stay and Abey. (Order 12/5/19, Doc. 24.) On December 6, 2019, Respondents responded (Doc. 25), taking no position on the motion.
III. APPLICATION OF LAW TO FACTS
A. WITHDRAWN CLAIMS - GROUNDS 9 , 10, 11
Petitioner purports to "withdraw" Grounds 9 (inconsistent testimony), 10 (race), and 11 (number of photos), conceding they are procedurally defaulted. (Amend. Reply, Doc. 23 at 5-6.) Neither the Rules Governing Section 2254 Cases nor the Federal Rules of Civil Procedure authorize a unilateral withdrawal of claims.
Petitioner cannot seek a dismissal of a portion of his pleading by notice or motion under Rule 41(a), which applies only to dismissal of an entire action. See Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988) ("a plaintiff may not use Rule 41(a)(1)(i) to dismiss, unilaterally, a single claim from a multi-claim complaint"). Rather, Federal Rule of Civil Procedure 15(a) is the appropriate mechanism. Id. See also Wright & Miller, Voluntary Dismissal—In General, 9 Fed. Prac. & Proc. Civ. § 2362 (4th ed.)
Accordingly, the undersigned construes this request as a motion to amend the Petition to delete Grounds 9, 10, and 11. Although briefing on the motion is not complete, the Court finds that further briefing is not necessary to a fair adjudication of the motion.
A petition for writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Thus, Federal Rule of Civil Procedure 15(a) governs the amendment of habeas petitions. Mayle v. Felix, 545 U.S. 644, 655 (2005).
In considering motions to amend the courts "often consider: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings. However, each is not given equal weight. Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citations omitted) (reviewing denial of leave to amend habeas petition).
Here, the nature of the amendment (especially in light of the admission of procedural default) provides little room for arguments of bad faith, undue delay, prejudice, or futility. Respondents seek the dismissal of the entire petition. Given the second and successive petitions limitation in 28 U.S.C. § 2244(b), little if any prejudice to Respondents would result from a voluntary deletion of portions of it.
Accordingly, the undersigned will recommend granting the motion to amend, deleting Grounds 9, 10 and 11. B. NON-COGNIZABLE CLAIMS - GROUNDS 7 , 8
Respondents argue that Grounds 2, 5, and 7-11 are not cognizable federal claims. (Answer, Doc. 15 at 16.) Petitioner argues that Grounds 2 and 7 are cognizable federal claims. (Amend. Reply, Doc. 23 at 4-5.)
Respondents properly argue that only violations of the "Constitution or laws or treaties of the United States" justify federal habeas relief. 28 U.S.C. § 2254(a). Thus, Respondents are correct that state law violations do not suffice.
However, Respondents are in error that Petitioner must plead a federal or constitutional basis for his claim. "And while the applicant must 'specify all the grounds for relief available,' 'no statute or rule requires that a petition identify a legal theory or include citations to legal authority.'" Brian R. Means, Required specificity of allegations, Postconviction Remedies § 12:6 (2018).
Moreover, although Petitioner is now represented by counsel, his Petition was filed pro se. "We must construe pro se habeas filings liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). The liberal construction mandate requires the court to read a claim as asserting legal theories suggested by the facts alleged. Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants, 27 J. Nat'l Ass'n Admin. L. Judiciary 97, 124-125 (2007). "Once again, we must liberally construe the pro se litigant's pleadings, and we will apply the applicable law, irrespective of whether he has mentioned it by name." Dluhos v. Strasberg, 321 F.3d 365, 373 (3rd Cir. 2003). See Bretz v. Kelman, 773 F.2d 1026, 1027 (9th Cir. 1985) (liberally construing pro se complaint to assert claim under 42 U.S.C. § 1985, even though only § 1983 cited).)
Further, the Court now has the benefit of Petitioner's counseled reply to clarify the nature of his claims.
Liberally construed, Ground 2 asserts a denial of Petitioner's right of confrontation under the Sixth Amendment. Indeed, Petitioner specifically references "the confrontation clause of the 6th Amendment." (Petition, Doc. 1 at 7.) That construction is echoed by counsel in the Amended Reply. (Doc. 23 at 15.)
On the other hand, Ground 7 does not assert a federal claim. It simply complains that Petitioner was not afforded a settlement conference, and that the affidavits of Petitioner and his wife regarding Petitioner's knowledge of the plea offer and potential sentence should have been accepted. This is reflected in counsel's recitation of the claims in the Amended Reply.
Ground 7a: There were no records of a settlement conference.(Amend. Reply, Doc. 23 at 7.) At best, these are additional facts in support of Petitioner's claim in Ground 3D of ineffective assistance regarding the plea and sentence. That is the construction ultimately given by counsel. (Id. at 4 (arguing Petitioner raised a "consolidated claim encompassing Grounds 3d, 7a, and 7b. Accordingly, they should be construed together."), and 15 (analyzing Ground 3D, 7A and 7B as part of the same claim of ineffective assistance).)
Ground 7b: The PCR court should have accepted as true the affidavits of Brooks and his wife.
As part of the mandate of liberal construction pro se pleadings, the federal courts are directed to not be misled by a the petitioner's division of his factual allegations among various claims or grounds for relief, but instead to ""look[] to the entire petition" Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001), as amended (June 5, 2001). Thus, while not state a separate cognizable claim, the Court must read Ground 7 as part of the factual allegations underlying Ground 3D.
That does not resolve whether the facts in Ground 7 transform Ground 3D into a claim not before the state courts. That issue is addressed hereinafter.
Petitioner proffers nothing to suggest that Grounds 5 or 8 through 11 assert federal claims. Ground 5 asserts a claim of actual innocence based on substitution of hard drives, and alibis as shown by timesheets, the bar employee, and the presence of his wife and daughter. Even if such a claim is may ultimately not be viable (particularly outside the capital punishment context), actual innocence remains a possible basis for a federal due process claim. Accordingly, it cannot be dismissed as non-cognizable.
Ground 8 complains that during his PCR proceedings, the state courts denied Petitioner's motion for his expert to examine a hard drive and interrogation CD. Neither the Petition nor the Amended Reply propose a federal claim in Ground 8. The undersigned discerns none.
Because Petitioner purports to "withdraw" Grounds 9, 10, and 11, conceding they are procedurally defaulted (Amend. Reply, Doc. 23 at 5-6), and the undersigned concludes withdrawal is appropriate, the undersigned does not address whether they state a federal claim. / / / / C. EXHAUSTION ISSUES - GROUNDS 1. Exhaustion , Procedural Default and Procedural Bar
Exhaustion - Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. 28 U.S.C. § 2254(b) and (c). The burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). To exhaust his state remedies, the petitioner must ordinarily have fairly presented his federal claims to the state courts. "A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). Except in situations not applicable here, an Arizona state prisoner must present fairly present his claims to the Arizona Court of Appeals, Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), either in a direct appeal or in a petition for post-conviction relief. Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Although fair presentation is the normal mode of establishing exhaustion of state remedies, a petitioner's state remedies are also deemed exhausted where the state courts have passed on the merits of the claim. Castille v. Peoples, 489 U.S. 346, 351 (1989); Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002).
Unexhausted claims should ordinarily be dismissed without prejudice to them being reasserted after exhaustion is complete. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991).
Procedural Default - However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper. Reed v. Ross, 468 U.S. 1, 11 (1984).
Procedural Bar - Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. "[A]bsent showings of 'cause' and 'prejudice,' federal habeas relief will be unavailable when (1) 'a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) 'the state judgment rests on independent and adequate state procedural grounds.' " Walker v. Martin, 562 U.S. 307, 316 (2011). Such procedurally barred claims must be dismissed with prejudice. 2. Status of Petitioner's Claims a. Exhausted Claims - Grounds 1 , 2, 3D
Respondents concede Petitioner has properly exhausted his claims in Ground 1 (cruel and unusual) and Ground 3D (ineffectiveness re plea offer). The undersigned agrees. (See Exh. N, Opening Brief at 11-16 (citing State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006) (addressing 8th Amendment claim)); Exh. Y, PCR Pet. Rev. at 1-2, & n. 4 (citing Strickland v. Washington, 466 U.S. 668 (1984)).)
Petitioner argues that (in addition to Grounds 1 and 3D), Grounds 2 and 7 were fairly presented and properly exhausted. (Amended Reply, Doc. 23 at 2, et seq.)
Petitioner argues Ground 2 (CD and disk given to jury) was presented to the Arizona Court of Appeals and the Arizona Supreme Court on direct review. (Id. at 3.) Petitioner plainly argued the facts of his claim in Ground 2 on direct appeal to the Arizona Court of Appeals. (See Exh. N, Opening Brief at 8-11.) Of course, that of itself is not sufficient.
Rather, failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite "book and verse on the federal constitution," Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), 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) (per curiam). "[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law," Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by "a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).
Petitioner's appellate brief explicitly asserted Sixth Amendment and Due Process violations.
As Noushfar held, the error violated the confrontation clause of the Sixth Amendment (and in Brooks' trial, of its Arizona counterpart: Art. 2, §24).(Exh. N, Opening Brief at 9.)
Finally, the judge's abdication of his responsibility for reviewing evidence before it is sent to the jury violated the Due Process clauses of the Arizona and Federal Constitutions.(Id. at 10.)
Moreover, Petitioner cited to and argued on the basis of U.S. v. Noushfar, 78 F.3d 1442, 1444 (9th Cir. 1996) which held that allowing a jury to listen to recordings not played in the courtroom amounted to structural error. The undersigned concludes that the holding in Noushfar was not based on a finding of a constitutional guarantee, but a violation of Federal Rule of Criminal Procedure 43(a) (presence of defendant required). Noushfar cited to that Rule and United States v. Kupau, 781 F.2d 740, 741-43 (9th Cir. 1986) to find error. 78 F.3d at 1444. In turn, Kupau relied on Rule 43, and distinguished between a Rule 43 violation and a Sixth Amendment confrontation claim or Fifth Amendment due process claim on the basis of the applicable standard for harmlessness. Kupau, 781 F.2d at 743. Indeed, the nature of the Noushfar decision is made plain by it's conclusion: "These tapes went to the jury room in violation of Rule 43 and, possibly, the Confrontation Clause." Noushfar, 78 F.3d at 1445 (emphasis added). But regardless of the undersigned's reading of Noushfar, Petitioner explicitly argued that Noushfar was a Sixth Amendment holding. (Exh. N, Opening Brief at 9.) That was a fair presentation of the federal claim, even if an incorrect characterization of Noushfar.
Moreover, the Arizona Court of Appeals itself concluded that Noushfar's "holding was based on the Confrontation Clause," but distinguished the case and found Noushfar a non-binding decision in the state court. (Exh. P, Mem. Dec. 6/9/15 at ¶ 3.) "It is reasonable to infer an exception [to the fair presentation requirement] where the State has actually passed upon the claim." Castille v. Peoples, 489 U.S. 346, 351 (1989).
As discussed hereinabove, Ground 7 fails to state a federal claim, and is relevant only as part of the facts underlying Ground 3D (ineffectiveness re plea offer). (The extent to which this Court may rely on these additional facts is discussed hereinafter in addressing the merits of Ground 3D.) b. Unexhausted Claims - G2
Respondents argue Ground 3A, 3B, 3C, 3E, and 4 through 11 were not fairly presented, thus Petitioner's state remedies were not properly exhausted and are now procedurally defaulted. (Answer, Doc. 15 at 8, et seq.) Petitioner concedes Grounds 3A, 3B, 3C, 3E, 4, 5, 6, and 8 were not fairly presented to the state courts and his state remedies are unexhausted. Petitioner contends, however, that they claims may yet still be raised in state court and thus they are not procedurally defaulted, and a stay should be granted to allow him to raise them in the state courts. (Amend. Reply, Doc. 23 at 6, et seq.)
Ground 5 is a claim of actual innocence. The undersigned observes that Petitioner argued that he was "factually innocent of the offenses" in his PCR Petition (Exh. S at 33), Amended PCR Pet. (Pet., Doc. 1, Exh. 5 at 9), but he did not raise a federal claim of actual innocence. Moreover, he did not assert such innocence as a basis for relief in his Petition for Review (Exh. Y). While this Court must liberally construe Ground 5 as asserting a federal claim, the state courts were not required to do so.
The undersigned has already concluded hereinabove that Grounds 1, 2 and 3D were properly exhausted, Grounds 7 and 8 fail to assert cognizable claims, and Grounds 9, 10, and 11 are "withdrawn." The parties are in agreement that the remaining claims, those in Grounds 3A, 3B, 3C, 3E, 4, 5, and 6 have not been presented to the state courts and thus are not properly exhausted. The question remains whether Petitioner's state remedies on these claims are now procedurally defaulted. 3. Procedural Default a. General Rules on Arizona's Procedural Bars
Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents rely upon Arizona's preclusion bar, set out in Ariz. R. Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer, Doc. 15 at 11.)
Remedies by Direct Appeal - Under Ariz.R.Crim.P. 31.3, the time for filing a direct appeal expires twenty days after entry of the judgment and sentence. Moreover, no provision is made for a successive direct appeal. Accordingly, direct appeal is no longer available for review of Petitioner's unexhausted claims.
Remedies by Post-Conviction Relief - Under Arizona's waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition. In applying these Rules, the undersigned notes that effective January 1, 2020 Arizona's rules governing PCR petitions were substantially modified. In general, the modifications apply "to all actions filed on or after January 1, 2020." See Ariz. R. Crim. P. 32.4, Editor's Notes, Applicability Provision. Because the issue in the instant discussion is relevant to PCR that could be filed in the future, the new rules would apply. The changes are substantive only as noted hereinafter.
Waiver Bar - Under the recently amended rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant." Ariz.R.Crim.P. 32.2(a)(3) (emphasis added). The latter addition codifies prior Arizona case law that some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel). For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights "that can only be waived by a defendant personally." State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at "the nature of the right allegedly affected by counsel's ineffective performance. Id.
In addition, a claim may also not be brought in an Arizona PCR petition if the claim was "[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding." Ariz. R. Crim. P. 32.2(a)(2). In such cases, the claim would be exhausted based on the earlier ruling.
Here, Petitioner's only unexhausted claim not asserting ineffective assistance is Ground 5 (actual innocence), which is not of the sort requiring a personal waiver Petitioner's claims of ineffective assistance (Ground 3A (IAC re investigation), 3B (IAC re alibi witness), 3C (IAC re timesheets), 3E (IAC re testimony preparation), 4 (IAC re timesheets), and 6 (IAC re co-worker) similarly have at their core the kinds of claims not within the types identified as requiring a personal waiver.
Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. Ariz.R.Crim.P. 32.4(b)(3)(A) now requires that petitions for post-conviction relief (other than those following a guilty plea, which must now be raised under Rule 33) asserting a constitutional violation (under Ariz. R. Crim. P. 32.1(a)) must be filed "within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later." See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition, and noting that first petition of pleading defendant deemed direct appeal for purposes of the rule). That time has long since passed.
Recall of the Mandate - Petitioner argues that despite the completion of direct appeal and his first PCR proceeding, relief in those proceedings is not foreclosed because a mandate may be recalled in situations where "the interests of justice outweigh the interest in bringing litigation to an end." (Amend. Reply, Doc. 23 at 6 (quoting Lindus v. Northern Insurance, 103 Ariz. 160, 162, 438 P.2d 311, 313 (1968)).)
Petitioner acknowledges that this avenue is not an open opportunity for a do-over, but is limited to cases of "fraud, imposition, or mistake of fact." (Id. (quoting Lindus, supra).) Indeed, the Arizona Supreme Court has opined: "It has further been held that an appellate court may recall the mandate for the purpose of correcting clerical errors, or where the action of the court was procured by fraud or imposition on the court, or where the opinion was based on a mistake of fact, the reason being that in such cases the mandate is a nullity and the appellate court has never actually relinquished jurisdiction." Overson v. Martin, 90 Ariz. 151, 153, 367 P.2d 203, 205 (1961).
Petitioner points to no clerical error, fraud or imposition, or mistake of fact relating to his claims. Indeed, he asserted no claim of actual innocence on direct appeal, and did not assert his unexhausted claims of ineffective assistance in the PCR appellate proceedings. At most, he now asserts that the trial court should have allowed him access to his hard drive to gather evidence to support a new claim of actual innocence. (Amend. Reply, Doc. 23 at 6.) But Petitioner's efforts to obtain such access were not commenced until September 2018, after the Arizona Court of Appeals and Arizona Supreme Court had already ruled. Thus, they cannot form the basis of an attack on the propriety of the decision in the appellate courts. Nor is there any indication that they infer any impropriety in the resulting mandate.
In Arizona, claims of ineffective assistance of counsel are required to be raised in a PCR proceeding. State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002) ("ineffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit...The appellate court simply will not address them."). Accordingly, this contention is relevant for direct appeal only as to Ground 5 (actual innocence), Petitioners' only unexhausted ground not asserting a claim of ineffective assistance. Conversely, Petitioner's claim of actual innocence would (unless subject to the exceptions asserted hereinafter) not be relevant to the PCR appellate proceedings because it would be deemed waived on direct appeal.
Even if they had been filed earlier, Petitioner's bare request for discovery to the trial court does not impugn the integrity of the decisions of the appellate courts. Petitioner offers nothing to show that the appellate courts were even aware such a motion had been filed, nor that he sought a delay in their decisions to allow the completion of such discovery.
Petitioner fails to show that on these facts the Arizona appellate courts would recall its mandate. b. Exceptions
Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(b) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion/waiver bar); Ariz. R. Crim. P. 32.4(b)(3)(B) (exceptions to timeliness bar). Petitioner relies solely on the exception in Rule 32.1(e) (newly discovered facts). That provision covers claims that:
Prior to 2020, this was limited to the grounds specified in Ariz. R. Crim. P. 32.1(d) through (h). The only PCR claim now excluded from the exception is that in Rule 32.1(a) pertaining to constitutional claims. The undersigned assumes arguendo (in Petitioner's favor) that a constitutional claim arising under paragraph (a) that also qualifies under one of the other paragraphs would still qualify for an exception, as it has in the past.
(e) newly discovered material facts probably exist, and those facts probably would have changed the judgment or sentence. Newly discovered material facts exist if:
(1) the facts were discovered after the trial or sentencing;
(2) the defendant exercised due diligence in discovering these facts; and
(3) the newly discovered facts are material and not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of such critical significance that the impeachment evidence probably would have changed the judgment or
sentence.
The Arizona Supreme Court has explained:
There are five requirements for presenting a colorable claim of newly discovered evidence:
State v. Amaral, 239 Ariz. 217, 219, 368 P.3d 925, 927 (2016).(1) the evidence must appear on its face to have existed at the time of trial but be discovered after trial;
(2) the motion must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention;
(3) the evidence must not simply be cumulative or impeaching;
(4) the evidence must be relevant to the case;
(5) the evidence must be such that it would likely have altered the verdict, finding, or sentence if known at the time of trial.
Petitioner's argument on this point stems from his claim in Ground 8 regarding the trial court's denial of access to his hard drive. Petitioner's Ground 8 does not, however, assert any new facts that would be revealed by access to his hard drive. He simply asserts he should be allowed to "authenticate" the drive. (Petition, Doc. 1 at 13.)
In his Amended Reply, Petitioner argues that his claims in "in Grounds 3a, 3b, 3c, 3e, 4, 5, and 6 are all dependent on the Petitioner's access to the hard drive as alleged in Ground 8." (Amend. Reply, Doc. 23 at 7.) Even reading these claims together, Petitioner fails to show newly discovered facts to be discovered from the hard drive.
Petitioner's theory seems to be that he could somehow show that the files on the hard drive, or portions of them, were not put there by him. He raises the spectre that: (1) the hard drive was not protected by "passwords or a fire wall;" and (2) his alibi witness "Kristy" from Max's Sports Bar and timesheets would show he was elsewhere when the files were added. These are not newly discovered facts. Petitioner points out that "Det. Elting verified under oath" the lack of a password or firewall. (Petition, Doc. 1 at 8.) And Petitioner would have always been aware of his presence at the sports bar, and his work schedule. Further, these issues were raised in Petitioner's Amended PCR Petition. (Petition, Doc. 1 at Exh. 5, at 7.) Moreover, the date and timestamps of the files and access to the computer were litigated at trial (see Exh. J, R.T. 2/6/14 (closing arguments), in the Motion for New Trial (Petition, Doc. 1 at Exh. 8), and in Petitioner's first PCR Proceeding (see Petition, Doc. 1, at Exh. 5, Amended PCR Pet. at 6-7).
Nor does Petitioner show any due diligence in attempting to obtain this information at trial, during direct appeal, or at any time prior to his belated discovery motion. He plainly was on notice to seek out the evidence, even a trial.
Nor does Petitioner offer anything to show that any such evidence would not simply be cumulative or impeaching evidence, given that the underlying issues were litigated at trial.
Accordingly, Petitioner fails to show that Rule 32.1(e) applies to his unexhausted claims, and thus fails to show a new PCR proceeding remains available.
Therefore, Petitioner has procedurally defaulted on these claims. 4. Sufficiency of Procedural Bars
To bar habeas review, a state procedural bar must be "independent" and "adequate." A state procedural default ruling is not independent if application of the bar depends on an antecedent ruling on the merits of the federal claim. Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985)). Thus, a state court applying a state procedural bar that is "interwoven" with consideration of federal claims does not bar habeas review. Coleman v. Thompson, 501 U.S. 722, 735 (1991). To constitute an adequate state ground, the procedural rule must be "clear, consistently applied, and well-established at the time of petitioner's purported default." Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004).
Petitioner argues that Arizona's time bar is not regularly applied. (Amend. Reply, Doc. 23 at 8.) But, Petitioner fails to show how that is so. In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the
burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 584-585.
The Ninth Circuit has held that it Rule 32.4 is an adequate state ground. Simmons v. Schriro, 187 Fed. Appx. 753, 754 (9th Cir. 2006) (unpublished decision).
Assuming arguendo that opinion does not dispose of the issue, Petitioner does not explain the purported irregularity.
Moreno Case - Petitioner argues: "It is not at all clear that Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998), actually supports that view." (Amend. Reply, Doc. 23 at 8.) The state case cited by Petitioner was the Arizona Supreme Court's response to a certified question from a federal case cited by Respondents, Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997), for the proposition that the untimeliness bar under Rule 32.4(a) is a separate basis for dismissing an Arizona PCR, distinct from preclusion under Rule 32.2(a). (Answer, Doc. 15 at 11.)
In the federal case, the Ninth Circuit had referenced Arizona's waiver bar (Rule 32.2(a)) and time bar (Rule 32.4) and the exception for untimely appeals (Rule 32.1(f)), and inquired: (1) whether the petitioner could "raise his claims pursuant to Rule 32.1(f) by alleging that his failure to file a timely petition for review or a Rule 32 petition was without fault on his part"; and (2) whether "any mandatory rule of state law bar Moreno from raising his claims at this date." 116 F.3d at 411.
The state court replied that the reference in Rule 32.1(f) to an untimely appeal applied only to direct appeals as of right from a conviction, not to discretionary review to the Arizona Supreme Court or review on PCR petitions. Moreno, 192 Ariz. at 134, 962 P.2d at 208. It further replied that it had insufficient facts about the case to further resolve whether Moreno's petition would be untimely under Rule 32.4. Id. at 135, 962 P.2d at 209.
At best, this line of cases suggests that in 1998 there was some question about which untimely procedures Rule 32.1(f) referenced. But here, Petitioner does not reply on Rule 32.1(f), and in any event the issue was resolved as of the state court's decision.
If Petitioner intends to attack Respondents' reading of the Ninth Circuit case as holding that both 32.4 and 32.2 could bar a claim, the Arizona Supreme Court's decision in Moreno and countless other Arizona habeas cases which have passed before this Court demonstrate the principle urged by Respondents is nonetheless valid.
Pope Case - Petitioner also references State v. Pope, 130 Ariz. 253, 635 P.2d 846 (1981), which he concedes "is widely followed in Arizona," arguing that the "widely held, clearly applied, regularly applied, and well- established understanding of the law on Rule 32 time limits is based upon" that case. But Pope has no application to Rule 32.4. Instead, it resolves whether Arizona's time limits under Ariz. R. Crim. P. 32.9(a) (motion for rehearing to the trial court in a PCR proceeding) are jurisdictional. Here, Petitioner's procedural defaults have occurred not because of a default in seeking a motion for rehearing, but in raising a claim in the first instance. This case shows nothing about the adequacy of Rule 32.4.
As of January 1, 2020, Rule 32.9 and been renumbered as Ariz. R. Crim. P. 32.14.
New Rules - The courts have found state procedural rules to not be "adequate" when they are "novel." See Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994), and cases cited therein. Although various modifications to Rule 32.2(a) and 32.4 have been adopted on August 29, 2019 and made effective January 1, 2020, the undersigned finds no substantive modification that would affect either the independence or adequacy of those rules as they may be relied upon to establish a procedural default.
One significant modification is the removal of a firm deadline (90 or 30 days) for PCR claims in Rule 32.1(b) through (h), and the adoption of a deadline of "within a reasonable time after discovery the basis of the claim." See Ariz. R. Crim. P. 32.4(b)(3)(B). But this was effectively an extension of the time, rather than a contraction.
Moreover, to the extent that such rules may have been "novel" after their adoption, or even after their effective date, Petitioner's defaults occurred before then.
Conclusion - Petitioner fails to meet his initial burden of showing that Arizona's timeliness rule is not adequate. Even if he had, his claims are also precluded under Rule 32.2(a), and ""Arizona's waiver rules are independent and adequate bases for denying relief." Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). 5. Cause and Prejudice
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of "cause and prejudice" sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:
... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials", made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
Denial of Discovery Motion - Petitioner asserts cause based on an argument that "[t]he 30-day time limit is very short and was triggered by the mandate of the appellate court" and it is unknown why appellate counsel "failed to special action the denial or file a motion for reconsideration." (Amend. Reply, Doc. 23 at 9.) Similarly, in his Petition, he argues his failure to exhaust should be excused because he was awaiting the appellate ruling. (Petition, Doc. 1 at 13.) Presumably, Petitioner is referring to the failure of PCR counsel to challenge the denial of his discovery regarding access to the hard drive.
The Petition also asserts cause with regards to Grounds 9 and 10 on the basis that he did not have access to the trial court documents. (Petition, Doc. 1 at 14, 15.) But he does not show that his appellate and PCR counsel did not. He argues cause with regard to Ground 11 that he "just received the petitions filed on my behalf." (Petition, Doc. 1 at 16.) He fails to explain how that precluded a timely filing, or why his counsel's actions should not be attributed to him. In any event, Petitioner has conceded these claims are procedurally defaulted and should be "withdrawn."
Petitioner fails to show what 30 day deadline applied, particularly given that there was no pending matter then before the trial court. Assuming such applied, the undersigned fails to find cause from a 30 day deadline, which is no less than what is permitted in many appellate proceedings. See e.g. Ariz. R. Crim. P. 32.16 (30 days for petition for review on PCR petition); Ariz. R. Crim. P. 31.21 (30 days to petition for review by Arizona Supreme Court); Fed. R. Civ. P. 59(e) (28 days to motion to alter or amend civil judgment); Fed. R. App. P. 4(a)(1)(A) (30 days for notice of appeal in civil case); Fed. R. App. P. 4(b)(1)(A) (14 days for notice of appeal in criminal case).
Further, Petitioner fails to explain why he was awaiting the appellate court's ruling.
Moreover, the core issue is why Petitioner did not previously raise his claims to the state courts. He fails to show why he was precluded from timely pursuing such discovery long before, whether at trial, on appeal, during the pendency of his PCR petition before the trial court, the Arizona Court of Appeals, or the Arizona Supreme Court, so as to be able to timely assert his claims based on such discovery. Denial of a belated motion for discovery is not good cause.
Ineffective Assistance - Petitioner asserts ineffective assistance of trial counsel and appellate counsel in failing to investigate the hard drive. (Amend. Reply, Doc. 23 at 9.) Ineffective assistance of trial and appellate counsel may constitute cause for failing to properly exhaust claims in state courts and excuse procedural default. Ortiz v. Stewart, 149 F.3d 923, 932, (9th Cir. 1998).
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). Here, the only claim of ineffective assistance properly exhausted by Petitioner is that raised in his claim in Ground 3D (ineffectiveness re plea). (See Exh. Y, PCR Pet. Rev.), which the undersigned has found to be exhausted. Petitioner has not properly exhausted his state remedies on a claim of ineffective assistance related to his procedurally defaulted claims.
Summary re Cause and Prejudice - Based upon the foregoing, the undersigned concludes that Petitioner has failed to establish cause to excuse his procedural defaults. 6. Actual Innocence
Both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.
Failure to establish cause may itself be excused "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). Not just any evidence of innocence will do; the petitioner must present "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner does not assert his actual innocence as a basis to avoid his procedural defaults. His Ground 5 does assert his actual innocence based on allegations that: (1) the State swapped out his external hard drive with another containing child pornography, (2) he had alibis for the times in which the child pornography files were accessed on his computer, and (3) his computer lacked a password and firewall so it was possible for someone to have remotely planted the child pornography files on his computer.
All these discrepancies must be viewed in light of Petitioner's admissions to downloading child pornography. The Arizona Court of Appeals found:
In evaluating the evidence, the habeas court is bound by the presumptions of correctness normally accorded to review of state court factual findings mandated by 28 U.S.C. § 2254(e), including credibility determinations. Sharpe v. Bell, 593 F.3d 372, 378-379 (4th Cir. 2010). However, those presumptions must be applied in light of the issue at hand. "It does not matter to our [actual innocence] analysis whether the witness is actually telling the truth-the purpose of a credibility determination-but rather we care only whether all reasonable jurors would choose to believe the proffered testimony." Smith v. Baldwin, 510 F.3d 1127, 1142, n. 11 (9th Cir. 2007).
¶4 After receiving a search warrant for the address, the case agent and his unit executed it. The police arrived at Brooks' home while he was at work, but his wife and daughter were home. The police contacted Brooks and when he arrived, Brooks agreed to an interview with the case agent.
¶5 Before telling Brooks why the police was at his house, Brooks asked the case agent if he was there for the files that Brooks had been downloading on BearShare. Brooks explained that he downloaded a lot of files from BearShare and as a result had a lot of different types of files on his computer. When asked whether he had child pornography on his computer, Brooks responded that there probably was, with somewhere between 200 and 500 images. But Brooks also stated that if he found child pornography on his computer, he would delete it. Brooks also repeatedly explained that he used sharing programs to download music, but the agent did not find any music file in the shared folder.
Hard Drive - The swapping of hard drives sounds impressive at first blush. But only if one overlooks the evidence that the metadata and linked files on the computer corroborated his admission that he downloaded child pornography, and linked the charged videos to Petitioner's computer.
A forensic examiner inspected Brooks' computer and determined that of the computer's four user accounts, only Brooks' was set to private, which meant that other users could not access his files. The examiner inspected the computer's BearShare and noted that its top seven favorite search terms were all commonly associated with child pornography. The examiner found 1,198 link files on the computer that connected to files on an external hard drive that had titles with terms commonly associated with child pornography.(Exh. P, Mem. Dec. 6/9/15 at ¶ 6.)
It also overlooks the fact that the evidence showed the hard drive was connected to Petitioner, both as the "owner" and by links in the video player history.
On the external drive, the examiner found 255 video files associated with child pornography. All the videos listed Brooks' user account as their owner.(Id.) (See also Exh. F, R.T. 1/30/14 at 106-120 (links on computer to charged videos).)
Moreover, the relevant dates for the videos has long been known to Petitioner since trial. (See Exh. F, R.T. 1/30/14 at 99-106.)
Alibis - Petitioner argues he has alibis (from being at work and a bar) for when files were downloaded, accessed, or viewed. The PCR Court analyzed this defense in detail in the course of resolving the related claim of ineffective assistance.
At trial, one defense raised was an alibi defense, namely that Defendant was at work and could not have accessed or viewed the video files in question. Defendant contends that defense counsel neither disclosed to the prosecution the work schedule provided to counsel by Defendant, nor sought the employment records for Defendant from his employer during the dates in question. Defendant contends that the information was exculpatory and would have demonstrated that Defendant ''was gone during at least a portion of the times the State alleges these files were viewed." In support of this argument, Defendant submitted Appendix 32. Defendant's argument fails in several regards:
• By Defendant's own admission, his work schedule only would have created a possible alibi for "a portion of the times" - but not all of the times that the files were allegedly viewed. Defendant cites no alibi with respect to Counts 7, 9 and 10. Petition at 19.
• The nature of the evidence that trial counsel did not introduce does not necessarily provide an alibi. Defendant filed Appendix 32 to support his Petition. This Appendix appears to reflect his work schedule, not when he actually worked. This is best illustrated by one date: September 3, 2009. On this date, a Thursday, the calendars submitted as part of Appendix 32 indicate that Defendant worked a full day. However, it was uncontested at trial that Defendant did not work a full day that day - this was the day that police served the search warrant and Defendant called back home to meet with police about the child pornography found on his computer. Moreover, the calendar included as Appendix 32 listed regular hours - like a work schedule - and did not include precise times when work began and ended - like a time card where Defendant had to punch-in and punch-out. 1 In other words, Appendix 32 was, at best, a work schedule. This calendar was cumulative in nature, as Defendant testified what his work schedule was. More important, this calendar had limited value because it did not show what time Defendant actually arrived at work and left work on any given day. The absence of this information became
significant because Defendant testified that he ''would sometimes get out early." Appendix 27, at p.29 In.I. At best, Appendix 32 was cumulative evidence of Defendant's scheduled work hours. It did not provide an actual alibi for any of the dates in question. [ ]
• Defendant argues that he was working for a number of the "Last Written" dates and times that related to the charged files, and therefore could not have knowingly possessed the child pornography because he has an alibi. (The "Last Written" date reflects when a video was played most recently.) Each of Defendant's potential alibis in the Petition is identified with particularity on page 19 of the Petition. However, Defendant's own argument, together with the evidence presented at trial, does not establish an alibi broad enough to completely encompass both the "File Created" date and the "Last Written" date for all copies of the ten videos in question. Restated, there remains a "File Created" date or a "Last Written" date for at least one copy of each of the ten charged child pornography videos which occurred during a time that Defendant's alibi of being "at work" does not apply. Simply stated, Defendant's work schedule did not give him a complete alibi for any one of the charged offenses.
* * *
• ...Moreover, the evidence that Defendant knowingly possessed the child pornography videos in question was overwhelming and included:
? Each of the ten videos had been opened by Real Player at least one time (some more than one time). (App. 25, at 39-40)
? None of the videos had been deleted or placed in the Recycle folder in Defendant's computer. To the contrary, many if not all videos had been copied to the external hard drive.
? Defendant had at least 6 favorite search terms in his Bearshare account. (Bearshare was the program Defendant used to search for and download child pornography). Each of Defendant's six search terms in his "favorites" file were known terms that pulled up child pornography results. His "favorites" file had no search terms for music, adult pornography, or anything else besides child pornography search terms.
? Police found 255 child pornography files saved on Defendant's computer and external hard drive. On the day the search warrant was executed, Defendant admitted to police that there were "probably" some files containing child pornography on his hard drive.
? On the date police began their investigation, as much as 25% of Defendant's shared file list consisted of child pornography.
? No one besides Defendant was identified as being the person inside Defendant's house, with
(Exh. X, M.E. 12/16/16 at 2-4.)access to his computer, who might be responsible for downloading and playing child pornography. Besides Defendant, no one was identified with any modicum of credibility to have access to Defendant's computer on the dates and times in question.
Defendant admitted that 9 of the 10 link files were created at times Defendant was not working. Appendix 26, at p. 69, ln. 21 through p. 72, ln. 6. There was only one link file that was created at a time Defendant claimed to be at work- namely on a Thursday. Id, at p. 72, lns. 1-6. The only two link files created on a Thursday were those relating to the child pornography videos charged in Counts 3 and 6. The link file for the video for Count 3 had a last written date of Monday, August 31, 2009 - a date Defendant was off from work (per Appendix 32). Appendix 23, at p.109, ln. 25 through p. 110, ln. 12. The video for Count 6 was found on Defendant's computer (in the Downloads file), and it had a "File Created" date of Wednesday, April 2, 2008 at 3:55 p.m. - i.e. over two hours after Defendant's work day had ended at 1:30 p.m. that day. Appendix 23, at p.113, lns. 3-8; Appendix 32.(Id. at 3, n. 2.) Petitioner proffers nothing to show these findings are incorrect, nor why these facts do not defeat any attempt to show no reasonable juror could have convicted Petitioner based on his purported alibis.
At best, Petitioner asserts his timesheets, rather than his work schedule, would establish alibis. But, Petitioner has not provided those timesheets. And, Petitioner offers nothing to show that they would have provided him with an alibi for each of the dates, e.g. the file created, last written, and linked dates.
Petitioner also proffers no reason why a juror could not accept the explanation of the detective that Petitioner's presence at the bar would not provide an alibi:
Q. And did you follow up with Kristi?
A. No.
Q. Why not?
A. The reason I never followed up with her is she had no relevant information she could provide me that would shed any light on whether Mr. Brooks was involved in this activity or not. He stated he was at the bar on Monday. But that really had no real relevance to any of the questions that I had asked Mr. Brooks, nor did it shed any light on any of the answers.
Q. Even though it could have potentially been somewhere that he was that Monday?
A. Again, that wouldn't have mattered. The way that these programs work is that you don't have to be sitting at your computer to be actively engaged in these activities. In fact, most of the time --
in fact, in every case I can think of where I've interviewed someone and they told me about their activities, they don't sit at their computer while this is going on, simply because the size of these files necessitate, if not several hours, sometimes a day to download. So most people don't sit in front of their computer while files are downloading because, one, it's so time-intensive, and two, there's really nothing for them to see while the files are downloading.(Exh. E, R.T. 1/29/14 at -74.)
Q. What would somebody do, then? When you're talking about files take this long to download, they would initiate the download and then what?
A. Walk away. Go do other things. They could sit at their computer and do other things on their computer, but it's not at all uncommon for someone to initiate the activity and go to work or initiate the activity and go to bed for the evening while the downloads are taking place.
Q. So the files can still continue downloading, even though someone is not sitting there; is that fair?
A. Absolutely.
Further, Petitioner fails to provide an affidavit from his alibi witness. A petitioner may not simply allege that the evidence of his innocence exists, but must present it to the habeas court, through affidavit of the witnesses, etc. See Weeks v. Bowersox, 119 F.3d 1342, 1352-1353 (8th Cir. 1997). As Chief Judge Kozinksi observed in his special concurrence in Lee v. Lampert, "[t]he Court certainly did not hold that a petitioner may invoke Schlup whenever he wants a trial do-over." 653 F.3d 929, 946 (9th Cir. 2011) (Kozinksi, C.J, specially concurring).
Even if Petitioner had an explanation for his failure to provide such an affidavit, in disposing of the related claim of ineffective assistance, the PCR court observed:
Given that the date in question was in August 2009, and charges were not filed until over 2 years later, and that trial did not occur for 4 years after the date in question, it is fair to question the likelihood is that this sports bar employee would have even remembered Defendant on the single date, and at the certain time in question, years later.(Exh. X, M.E. 12/16/16 at 5.) Petitioner proffers no reason to conclude that such testimony now, over 11 years later, would be credible.
Finally, Petitioner argues that his wife (a school teacher) and daughter would have been at home during some of the relevant dates and times, which occurred during the summer school vacation. But Petitioner proffers no credible evidence (e.g. affidavits, etc.) to show that they were home on the specific dates and times, or that their presence in the home necessarily precluded Petitioner from downloading or accessing the files (e.g. that they were always in the same room, etc.)
Password and Firewall - Finally, Petitioner's references to the password and firewall are not new evidence. Rather, such evidence was presented to the jury. (See Exh. F, R.T. 1/30/14 at 136 (no passwords), 138 (no firewall).) 7. Conclusion re Exhaustion
Based upon the foregoing, the undersigned concludes that Petitioner has properly exhausted his state remedies on Grounds 1, 2, and 3D. He has procedurally defaulted his state remedies on his claims in Grounds 3A, 3B, 3C, 3E, 4, 5, and 6. (Grounds 7 and 8 do not assert cognizable federal grounds, and Grounds 9, 10, and 11 are "withdrawn.") Petitioner has failed to show cause or actual innocence to excuse his procedural defaults. D. STANDARD OF REVIEW ON MERITS
In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
To grant relief to a state prisoner on a claim addressed on the merits by the state courts, the habeas court must make two determinations: (1) on de novo review that the Constitution was, under the controlling law applicable in the habeas court (including circuit law), violated and relief is thus authorized under 28 U.S.C. § 2254(a); and (2) on deferential review one of the two deferential requirements of 28 U.S.C. § 2254(d) have been met, i.e. that the state court's decision violated Supreme Court law, and/or was based on an unreasonable determination of the facts.
To justify habeas relief based on legal error, a state court's merits-based decision must be "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" before relief may be granted. 28 U.S.C. §2254(d)(1). Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). E. GROUND 1 - CRUEL AND UNUSUAL PUNISHMENT 1. Parties Arguments
In Ground 1, Petitioner argues his sentence of 120 years is cruel and unusual, citing polls of federal judges opining that Arizona's mandatory minimums are excessive. (Petition, Doc. 1 at 6.)
Respondents argue that under the deferential standards under 28 U.S.C. § 2254(d), the state court's rejection of this claim on the merits does not warrant relief. (Answer, Doc. 15 at 22-24.)
Petitioner replies that the categorical approach for proportionality challenges under the Eighth Amendment has been extended by the Ninth Circuit to consecutive sentences equivalent to life terms, and that his combined 120 year sentence is equivalent to a life sentence. Petitioner argues that the mandatory minimum applied is disproportionate to the sentence for similar crimes under federal law and the law of every other state, longer than Arizona's sentence for sexual abuse of a child, and equal to Arizona's sentence for child molestation, the penalty for first degree murder, and sexual assault. Petitioner argues the state court's decision was thus contrary to and an unreasonable application of Supreme Court law. (Amend. Reply, Doc. 23 at 9-14.) 2. State Court Decision
In disposing of this claim on direct appeal, the Arizona Court of Appeals ruled:
Brooks urges this Court to hold that State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006), which held that Arizona's sentencing guidelines for possession of child pornography was not so grossly disproportionate as to constitute cruel and unusual punishment, was erroneously decided. But we are bound by supreme court precedent. State v. Newnon, 208 Ariz. 507, 508 1 8, 95 P.3d 950, 951 (App.2004) (providing that the court of appeals has "no authority to overrule or disregard decisions of our supreme court").(Exh. P, Mem. Dec. 6/9/15 at ¶ 14.) This merits decision by the Arizona Court of Appeals is entitled to deferential review under 28 U.S.C. § 2254(d). 3. Deferential Review
Petitioner points to no unreasonable determination of the facts underlying the state court's decision. The undersigned finds none.
Petitioner argues that the decision was contrary to, and an unreasonable application of, Supreme Court law.
Here, the state court adopted wholesale the reasoning of Berger to dispose of Petitioner's claim, and this Court must look to that decision as the reasoning employed in this case.
In Berger, the Arizona Supreme Court found no unconstitutional disproportionality in a sentence to 20 consecutive, minimum, 10-year prison terms on charges of sexual exploitation of a minor under the age of 15 under Arizona's child pornography laws, Ariz. Rev. Stat. § 13-3553 (2002), the same offense of which Petitioner was convicted.
In so doing the Court relied primarily on Ewing v. California, 538 U.S. 11 (2003) and Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991). It applied a standard of "gross disproportionality," under a decisional rubric calling for: (1) a comparison of the gravity of the offense and the harshness of the penalty, with deference to the legislative policy judgements; (2) followed (if disproportionality is found) by "consideration of the state's sentences for other crimes and sentences of other states on the same crime. Berger, 212 Ariz. at 476-477, 134 P.3d at 381-382 (2006). This is the same analysis urged by Petitioner, under the labels of "categorical" and "as applied" standards. (Amend. Reply, Doc. 23 at 10-11.) It is the same approach applied in Harmelin. See Graham v. Florida, 560 U.S. 48, 60 (2010), as modified (July 6, 2010).
The Supreme Court has also employed a separate rubric of "categorical rules," either "considering the nature of the offense" (e.g. death penalty for nonhomicide crimes) or the "nature of the offender" (e.g. death penalty for juvenile offenses or intellectually limited defendants). Graham, 560 U.S. at 60-61.
Under the first prong, the Berger court found Arizona's child pornography statutes serve the "compelling interest of protecting children from sexual exploitation," that child pornography was exploitive of an harmful to the children used in its production, and "[c]riminalizing the possession of child pornography is tied directly to state efforts to deter its production and distribution" and "encourages the destruction of such materials." Berger, 212 Ariz. at 477, 134 P.3d at 382. The court further noted the legislature's determinations that criminalizing possession diminished demand, and thus diminish the production of child pornography with its direct harms to the involved children. Id. at 478, 134 P.3d at 383. Petitioner does not challenge those determinations.
In contrast, on direct appeal, Petitioner argued that the connection between his possession and the production was too attenuated (based on the prior production of the pornography and the victim's lack of awareness of the possession) to attribute the harms of production to him. (Exh. N, Opening Brief at 11-14.) A similar "victimless crime" argument had been rejected in Berger. 212 Ariz. at 482, 134 P.3d at 387. --------
The Berger court further concluded that, weighed against those determinations on the gravity of the offense, the 10-year sentences were not disproportionate. "The ten-year sentence imposed for each offense is consistent with the State's penological goal of deterring the production and possession of child pornography." Id. at 480, 134 P.3d at 385.
Petitioner offers no challenge to that conclusion. Instead, Petitioner skips ahead to the "as applied" stage, comparing other crimes and other jurisdictions. (Amend. Reply, Doc. 23 at 13-14.)
The real rub comes where the Berger court declined to instead look at the combined, 200-year sentence. The court noted that the various offenses involved separate occurrences (not, for example, multiple images obtained simultaneously), and explicitly refused to consider the imposition of consecutive sentences or cumulative sentence in the proportionality inquiry. Nor was the court swayed by the effective "life" term:
This proposition holds true even if a defendant faces a total sentence exceeding a normal life expectancy as a result of consecutive sentences. See, e.g., Lockyer, 538 U.S. at 74 n. 1, 123 S.Ct. 1166 (rejecting, in context of federal habeas review, dissent's argument that
two consecutive sentences of twenty-five years to life for separate offenses were equivalent, for purposes of Eighth Amendment analysis, to one sentence of life without parole for thirty-seven-year-old defendant); United States v. Beverly, 369 F.3d 516, 537 (6th Cir.2004); Taylor, 160 Ariz. at 422, 773 P.2d at 981.Berger, 212 Ariz. at 479, 134 P.3d at 384.
It this conclusion that Petitioner attacks. But Petitioner concedes that no Supreme Court decision has ever directly held that the cumulative sentence is the relative sentence, and instead looks to the Ninth Circuit's decision in Moore v. Biter, 725 F.3d 1184, 1186 (9th Cir. 2013), decided some seven years after Berger, as an application of the rule adopted in Graham v. Florida. (Amend. Reply, Doc. 23 at 12-13.)
In Moore, the defendant was sentenced to a combined term of 254 years without parole for some 127 years, on "nine counts of forcible rape, seven counts of forcible oral copulation, two counts of attempted second degree robbery, two counts of second degree robbery, forcible sodomy, kidnaping with the specific intent to commit a felony sex offense, genital penetration by a foreign object, and the unlawful driving or taking of a vehicle." 725 F.3d at 1186. The charges arose out of the defendant, while a juvenile, "sexually victimizing four separate women on four occasions during a five-week period." Id.
The Ninth Circuit found Moore's cumulative sentence materially indistinguishable from that in Graham, where the court found that "life without parole for nonhomicide juvenile offenders constitutes cruel and unusual punishment," even though the defendant in Graham had received a life sentence on a single burglary charge. Moore, 725 F.3d at 1189. Thus, the Ninth Circuit found the state court had acted "contrary to" Graham in failing to find Moore's cumulative life sentence to be cruel and unusual.
Petitioner argues that the state court in his case similarly acted contrary to Graham in failing to find Petitioner's cumulative life sentence cruel and unusual.
Petitioner overlooks two material distinctions. First, Graham and Moore both involved juveniles. This fact was central to the determination in the Graham decision. As recognized in Moore, the Graham decision relied on both the characteristics of juvenile offenders (lack of maturity and sense of responsibility, susceptibility to negative influences and outside pressures, increased capability of rehabilitation, still developing moral characters, etc.) and the impact of a life sentence on juveniles (life sentence harsher because of longer time and greater percentage of life in prison). Moore, 725 F.3d at 1189-1190.
Second, Petitioner overlooks that Graham and Moore were applying categorical rules. Indeed, the Moore opinion described Graham as breaking new ground by applying "a categorical classification to a term-of-years sentence for the first time." Moore, 725 F.3d at 1188. That categorical rule was simply that life without parole for nonhomicide juvenile offenders constitutes cruel and unusual punishment. Such categorical rules are, by definition, limited to the categories they address.
Thus, neither Graham nor Moore hold that any life sentence (singular or cumulative) for a nonhomicide offense is cruel and unusual, but instead hold only that such sentences applied to juveniles are. Petitioner is not a juvenile. Accordingly, the rejection of his claim was neither an unreasonable application of Graham, nor contrary to its holding.
Accordingly, under § 2254(d), Petitioner cannot be granted relief on Ground 1, and it must be denied. F. GROUND 2 - CONFRONTATION RE CD 1. Parties Arguments
In Ground 2, Petitioner argues his confrontation clause rights were violated when the jury was allowed to take into deliberations and view a CD with contents not viewed in the courtroom and a disk "from a completely different case." (Petition, Doc. 1 at 7.)
Petitioner explained in his Opening Brief on direct appeal that an additional disk had been delivered to court staff with a computer for the jury to view the video CD. The other disk contained records of inmate phone calls unrelated to the instant case. The jury then asked the court about the disk. In his Amended Reply, Petitioner makes no reference to other disk. Thus, the undersigned views the allegations regarding this disk as part of the res gestae, offered to show "it is clear that the jury requested the computer, because before long, the jury asked about a disk of inmate telephone records that had been sent into them with the computer." (Exh. N, Opening Brief at 7.)
Respondents address this Ground only on the basis that it is noncognizable, which the undersigned rejects hereinabove. (Answer, Doc. 15 at 16.)
Petitioner replies, clarifying that only about 20 of the 150 minutes of video on the pertinent CD were viewed in the courtroom, and that a disk with inmate phone records had been included with the computer provided to the jury to view the videos CD. He argues the merits of this claim under the Ninth Circuit's decision Noushfar. (Amend. Reply, Doc. 23 at 14-15.) 2. State Court Ruling
On direct appeal, the Arizona Court of Appeals found no impropriety under state law (Exh. P, Mem. Dec. 6/9/15 at ¶ 10-11), and then rejected federal claim, opining:
¶ 12 Brooks nonetheless maintains that the trial court erred because its ruling was contrary to, United States v. Noushfar, 78 F.3d 1442 (9th Cir.1996), in which the United States Court of Appeals for the Ninth Circuit held that the district court committed structural error by allowing jurors to take into the jury room 14 audiotapes that had never been presented in open court and over the defendants' objections, without instructions regarding the tapes, and without the judge's supervision when played. But Brooks' reliance on Noushfar is misplaced. The circuit court's holding was based on the Confrontation Clause and the principle that "a defendant's conviction may be based only on evidence present during trial." Noushfar, 78 F.3d at 1445. Unlike in Noushfar, the trial court here admitted the CD with the ten charged videos after it heard the case agent testified to each video's title, duration, and contents and after it viewed a representative portion of each video. Thus, unlike in Noushfar, the court's action was not "akin to allowing a new witness to testify privately." Id. In any event, decisions of the Ninth Circuit, although persuasive, are not binding on Arizona courts. State v. Afitchell, 234 Ariz. 410, 418, ¶ 29, 323 P.3d 69, 77 (App. 2014).(Id. at ¶ 12.) (The state court also rejected a claim under the Arizona Constitution. (Id. at ¶ 13.)) This merits decision is entitled to deference under 28 U.S.C. § 2254(d). 3. Deferential Review
Under de novo review, the undersigned would find no binding precedent under Noushfar, which by its own terms did not decide a Confrontation Clause claim. "These tapes went to the jury room in violation of Rule 43 and, possibly, the Confrontation Clause." Noushfar, 78 F.3d at 1445 (emphasis added).
Moreover, under § 2254(d) deferential review, Noushfar is not controlling.
Moreover, Petitioner points to no Supreme Court decision finding a Confrontation Clause violation based upon allowing a jury to view an admitted exhibit in deliberations when the entirety of the exhibit had not been viewed in the courtroom. Nor does Petitioner point to any Supreme Court holding which would require such a finding. The undersigned has found none. Noushfar cited none. Indeed, the only precedents cited by Noushfar were what it described as "replay cases," where the jury was merely "rehear[ing] tapes that have already been played in open court." 78 F.3d at 1444. None of those precedents decided Confrontation Clause issues. See United States v. Felix-Rodriguez, 22 F.3d 964 (9th Cir. 1994) (applying Fed. R. Crim. P. 43); United States v. Brown, 832 F.2d 128 (9th Cir. 1987) (same); United States v. Kupau, 781 F.2d 740 (9th Cir. 1986) (same). At most, Kupau cited Bustamante v. Eyman, 456 F.2d 269, 274 (9th Cir.1972) for the proposition that counsel could not waive a right to be present, and Bustamante v. Cardwell, 497 F.2d 556 (9th Cir. 1974) for the proposition that a showing of prejudice was required.
This view of all these decisions as based on Rule 43 was more recently emphasized by the Ninth Circuit in United States v. Chadwell, 798 F.3d 910, 915-916 (9th Cir. 2015) ("In Noushfar, we held that Rule 43(a) was violated").
Indeed, in La Crosse v. Kernan, 244 F.3d 702, 708 (9th Cir. 2001), the Ninth Circuit held that the "replay" decision in Kupau "rel[ied] on circuit rather than Supreme Court authority," which "has never addressed whether readback of testimony to a jury is a "critical stage[] of the trial" triggering a criminal defendant's fundamental right to be present." Thus, the Court could not find a contrary California court decision to be "contrary to or an unreasonable application of clearly established federal law."
Thus, under the deferential review of § 2254(d), Ground 2 is without merit. G. GROUND 3D - IAC RE PLEA OFFER 1. Parties Arguments
In Ground 3D (as read in pari materia with Ground 7), Petitioner argues that trial counsel provided ineffective assistance by failing to communicate a plea offer (Petition, Doc. 1 at 8), no settlement conference was held on the offer, counsel improperly asserted at a trial setting hearing that Petitioner was not interested in a plea, and that the affidavits of Petitioner and his wife were sufficient evidence that he had not been advised, and that he was not advised he was risking a 200 year sentence by proceeding to trial (id. at 12).
Respondents argue that the state court made a reasonable factual determination when it concluded the plea offer had been communicated to Petitioner and he had been advised on his sentencing exposure, and rejected the post-hoc, self-serving affidavits. Respondents further argue the state court reasonably found no prejudice based on Petitioner's failure to establish by a reasonable probability that he would have accepted the plea. (Answer, Doc. 15 at 20-22.)
Petitioner points to no error of law by the state court. Instead, Petitioner replies making the following factual assertions:
In the instant case, according to a Joint Pretrial Statement filed on September 25, 2013, the State offered Petitioner a plea of ten (10) to twenty-four (24) years with two lifetime probation tails. (Dkt. 15, Exh. S, at 20.) It is not clear when the plea offer was made. Although trial counsel's file indicates that Petitioner was advised of the plea offer and sentencing exposure on November 15, 2011, there is a subsequent note indicating that trial counsel's communication with the State regarding a potential plea offer did not occur until three months later, on January 25, 2012. Id. The file does not contain a copy of the plea offer or any correspondence regarding the plea. No deviation requests for submitted, nor were there any ongoing plea negotiations. There was no settlement conference and there was no Donald advisement. Id. Both Petitioner and his wife were adamant that no plea offer was ever conveyed and swore to such in their respective affidavits in the PCR petition. (Dkt. 15, Exh. S.)
Furthermore, trial counsel failed to advise Petitioner of the sentence he faced if convicted at trial. Id. Petitioner was repeatedly and erroneously advised that he would receive a ten-year sentence. However, Petitioner was facing ten to twenty-four years on each count and the dangerous crimes against children statute, A.R.S. §13-
604.01 renumbered as A.R.S. §13-705, mandated that the sentence for each count be served consecutively. Again, Petitioner was not advised of the consecutive sentence requirement under the dangerous crimes against children statute. Id.
* * *
In this case, counsel failed to negotiate in good faith with the prosecutor in violation of his ethical responsibilities. There is no indication that counsel conveyed Petitioner's request for a plea offer and no settlement conference was ever conducted. Petitioner was never advised of the sentence he would face if convicted at trial. Petitioner has no recollection of any conversations with his attorney concerning the pros and cons of going to trial, nor any frank conversations with respect to the strength or weaknesses of his case. Id. But for counsel's ineffectiveness, Petitioner would have accepted a plea offer extended by the State.(Amend. Reply, Doc. 23 at 19-22.) The only record cited by Petitioner in support of these contentions is his PCR Petition (Exh. S.) 2. State Court Decision
The Arizona Court of Appeals addressed this claim on petition for review in the PCR proceeding:
¶ 3 On review, Brooks argues only that the trial court erred by rejecting his claim that counsel failed to advise him of a plea offer and about the potential sentence he could face, asserting he is entitled to an evidentiary hearing. A defendant is entitled to a hearing if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668. 687 (1984). Counsel's performance falls below reasonable standards by failing to advise a defendant of a plea offer or properly advise him about the relative merits and risks of that offer compared to going to trial. See State v. Donald, 198 Ariz. 406, ¶ 14 (App. 2000). But, to show prejudice in this context, the defendant must additionally demonstrate there is a reasonable probability that, had counsel given accurate information, the defendant would have accepted the plea offer. Id. ¶ 20; see also Missouri v Frye, 566 U.S. 134. 147 (2012).
¶ 4 In the petition and accompanying affidavit filed below, Brooks asserted the state had made a plea offer that included a sentencing range often to twenty-four years, followed by a life term of probation. He claimed he had never been advised of that offer and, further, that his trial counsel had never advised him of "his potential sentencing exposure if he proceeded to trial," including that the sentences would be consecutive. Brooks also claimed that, had he been properly advised, he "would have considered a plea offer" or "[a]t a minimum,
[he] would have requested further negotiation for possible pretrial resolution."(Exh. Z, Mem. Dec. 1/4/18 at ¶¶ 3-6.) 3. Deferential Review
¶ 5 In rejecting that claim, the trial court noted Brooks had been informed of the potential sentence and his claim that he had not been advised of the plea was "suspect" in light of the joint pretrial statements describing the plea. The court further noted that Brooks had not alleged, as required by Donald, that he would have accepted the plea offer had he been made aware of it. The court observed Brooks had stated in his petition that he "was adamant that the case proceed to trial because he felt he would be vindicated of wrongdoing." Thus, the court concluded, Brooks had not shown prejudice because he had not shown a reasonable likelihood he would have accepted the offer.
¶ 6 In his petition for review, Brooks does not address the trial court's finding that he did not make a colorable claim of prejudice. Absent that showing, his claim fails. See Bennett, 213 Ariz. 562, ¶ 21; see State v. Salazar, 146 Ariz. 540, 541 (1985) (if defendant makes insufficient showing on either part of test for ineffective assistance, court need not address other part). Brooks therefore has not provided any basis for us to disturb the court's order summarily dismissing his petition.
Petitioner points to no error of law by the state court. The undersigned finds none.
If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.Lafler v. Cooper, 566 U.S. 156, 168 (2012).
In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.Id. at 164.
Nor does Petitioner point to any unreasonable determination of the facts. At best, he simply offers alternative evidence tending to show deficient performance by counsel. For example, Petitioner asserts there was circumstantial evidence suggesting the offfer was not communicated, e.g. that the offer may not have been made until after the time when counsel recorded discussing it with Petitioner, lack of any copies of the offer or correspondence, counteroffers, negotiations, settlement conference, etc. He points to the affidavits from himself and his wife about the lack of communication on the plea and the sentences.
But Petitioner fails to suggest why it was unreasonable for the state court to reject such evidence and to instead conclude to the contrary in light of the evidence from trial counsel (see Exh. U, Notes from trial counsel re "possible plea offer", "exposure" at trial), Petitioner having been informed of the potential sentence, and the representations by trial counsel on the joint pretrial statements describing the plea and rejection (see Exh. W, PCR Resp. at 10 (summarizing records)).
This habeas court is not free to simply second guess the state court's weighing of the evidence. Taylor, 366 F.3d at 999.
Moreover, even now, Petitioner has never presented any evidence to show a probability that he would have accepted the plea offer made to him. In the PCR court, Plaintiff avowed:
17. Mr. Brooks would have considered a plea offer had he been advised of the sentencing possibilities, the issues in the case, and the likelihood of success at trial. At a minimum, Mr. Brooks would have requested further negotiation for possible pretrial resolution.(Exh. T, Def.'s Affid. at 3.) His habeas petition is consistent:
If I had known I could be facing 200 plus years of course I would have worked hard to get a reasonable plea bargain.(Petition, Doc. 1 at 12.)
Petitioner's Amended Reply makes the bald assertion that "[b]ut for counsel's ineffectiveness, Petitioner would have accepted a plea offer extended by the State." (Doc. 23 at 22.) But it cites no evidence before the state court to that effect. (Moreover, the reply does not bear Petitioner's signature or avowal for it to be considered as new evidence.)
Thus, under the deferential review of § 2254(d), Ground 3D is without merit. H. MOTION TO STAY AND ABEY
Petitioner asks the Court to stay this proceeding pursuant to Rhines v. Weber, 544 U.S. 265 (2005) to allow him to exhaust his state remedies on his unexhausted grounds. In Rhines, the Supreme Court held that consideration of a petition containing unexhausted claims could be stayed pending exhaustion of state remedies, but only in limited circumstances:
Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.544 U.S. at 277. Petitioner does not qualify for such a stay for two reasons.
First, as discussed hereinabove, Petitioner's claims are not unexhausted, but are procedurally defaulted.
Second, Petitioner proffers no good cause for his failure to exhaust his claims in state court. He simply states: "There is good cause and meritorious bases to return to state court." (Amend. Reply, Doc. 23 at 8.) That is not sufficient. Rather, a showing of good cause must be supported by some evidence. "[A] bald assertion cannot amount to a showing of good cause." Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).
To the extent that Petitioner intends to rely on his assertions of cause to excuse his procedural defaults, the undersigned has already determined hereinabove that they do not suffice to show cause.
While the "good cause" standard under Rhines is not the equivalent of the cause component of the cause and prejudice standard, granting a stay upon a thin and common basis would "would run afoul of Rhines and its instruction that district courts should only stay mixed petitions in 'limited circumstances.'" Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (quoting Rhines, 544 U.S. at 277) (discussing motion to stay based on petitioner's lack of knowledge that a claim was not exhausted).
Petitioner's claim of cause based on the denial of his belated discovery motion fails to explain his failures to raise his unexhausted claims on direct appeal or in his first PCR proceeding.
Assuming arguendo that Petitioner need not show exhaustion of his claims of ineffective assistance of trial and appellate counsel to rely on them as "good cause," the speculative nature of those claims and the other evidence of Petitioner's guilt prevents Petitioner from showing the required prejudice. See Strickland, 466 U.S. at 694 (requiring reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).
Moreover, all of Petitioner's claims were ones properly raised in Arizona in a Petition for Post-Conviction Relief, i.e. ineffective assistance of counsel (Grounds 3A, 3B, 3C, 3E, 4, and 6) and actual innocence based on newly discovered evidence (Ground 5). See State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002) (ineffective assistance claims on direct appeal to be ignored, and instead to be raised in PCR); Ariz. R. Crim. P. 32.1(h) (actual innocence claims on PCR); and Ariz. R. Crim. P. 32.2(b) (exception to waiver rule for claims under 32.1(h)). Such claims were not procedurally defaulted at trial or on appeal, but in the PCR proceedings. Thus, ineffectiveness of trial or appellate counsel could not have caused the failure to exhaust.
Accordingly, even if the Court could conclude Petitioner's unexhausted claims were not procedurally defaulted, Petitioner is not entitled to a stay to exhaust his state remedies on those claims.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. "If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that with regard to Petitioner's Petition for Writ of Habeas Corpus, filed February 13, 2019 (Doc. 1): (A) Petitioner's motion to amend to delete Grounds 9, 10, and 11 be GRANTED, and the Petition DEEMED AMENDED to delete Grounds 9, 10, and 11. (B) Grounds 7 and 8 be DISMISSED WITH PREJUDICE for failure to state a cognizable claim. (C) Grounds 3A, 3B, 3C, 3E, 4, 5, and 6 be DISMISSED WITH PREJUDICE as procedurally defaulted. (D) Grounds 1, 2, and 3D and the balance of the Petition be DENIED.
IT IS FURTHER RECOMMENDED Petitioner's Motion to Stay and Abey (Doc. 23) be DENIED.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages." Dated: October 9, 2020
/s/_________
James F. Metcalf
United States Magistrate Judge 19-0963r RR 20 09 30 on HC.docx