Bucholtz v. Shinn

Full title: Jeffrey Glenn Bucholtz, Petitioner, v. David Shinn, Attorney General of…

Court: United States District Court, District of Arizona

Date published: Dec 6, 2022

CV 21-01939 PHX GMS (CDB) (D. Ariz. Dec. 6, 2022)

Opinion

CV 21-01939 PHX GMS (CDB)

12-06-2022

Jeffrey Glenn Bucholtz, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.

Camille D. Bibles United Stales Magistrate Judge

THE HONORABLE G. MURRAY SNOW

REPORT AND RECOMMENDATION

Camille D. Bibles United Stales Magistrate Judge

Petitioner Jeffrey Bucholtz seeks relief from his state court conviction and sentence pursuant to 28 U.S.C. § 2254.

I. Background

The Arizona Court of Appeals described Bucholtz's state criminal proceedings as follows:

In March of 2015, a grand jury indicted Defendant on 11 counts of sexual offenses committed between May 1, 2008 and July 31, 2011, when the victim (who was born in July 1998) was between the ages of nine and 13. After the victim testified at trial, the State filed a Motion to Amend the Indictment to Conform to the Evidence, seeking to amend the date range for the offenses alleged in counts 3, 4, and 5. Over Defendant's objection, the trial court granted the motion, amending the date range for those three counts to between May 1, 2010 and July 31, 2012.

The jury found Defendant guilty on all counts. The court imposed a combination of concurrent and consecutive prison terms, including - for two of the five convictions for sexual conduct with a minor - consecutive life sentences without the possibility of release for 35 years.

State v. Bucholtz, 2016 WL 6276850, at *1 (Ariz.Ct.App. Oct. 27, 2016).

Bucholtz appealed his convictions and sentences. In his counseled appellate brief Bucholtz argued the trial court erred by: (1) granting the prosecution's motion to amend the date ranges for Counts 3, 4, and 5 of the indictment, thereby violating his rights to due process and to be free of double jeopardy; (2) denying Bucholtz's motion for acquittal on Counts 9 and 10 due to a lack of evidence establishing when the events occurred; (3) imposing an illegal sentence on Count 10, arguing a lack of evidence the victim was under the age of 12 at the time of the offense; (4) failing to sua sponte instruct the jury on the “necessarily included offense of molestation” as to Counts 1, 3, and 8; (5) imposing a life sentence for Count 1 in the absence of a jury finding that the conduct was “not masturbatory;” and (6) providing a verdict form “describing conduct constituting sex conduct with a minor rather than sex abuse” for Count 9. (ECF No. 11-2 at 17-60).

In an order entered October 27, 2016, the Arizona Court of Appeals rejected Bucholtz's claims regarding the amendment of the indictment, the jury instructions, Bucholtz's sentence on Count 1, and the insufficiency of the evidence on Count 10. Bucholtz, 2016 WL 6276850, at *1-*4. However, because the State agreed with Bucholtz regarding the impropriety of a life sentence on Count 10, and the impropriety of the jury verdict form with regard to Count 9, the Court of Appeals vacated Bucholtz's conviction on Count 9 and the life sentence imposed on Count 10, and remanded the matter for resentencing on Count 10. Id.

Bucholtz sought review in the Arizona Supreme Court, asserting claims regarding the amendment of the indictment, the denial of the defense's motion for acquittal on Count 10, the failure to instruct on a lesser-included offense, and the imposition of a life sentence on Count 1. (ECF No. 11-2 at 118-34). The State responded, and also filed a motion to vacate Bucholtz's conviction on Count 7. (ECF No. 11-2 at 162-65). On April 19, 2017, the Arizona Supreme Court denied Bucholtz's petition for review and granted the State's motion to vacate the conviction for Count 7. (ECF No. 11-2 at 171). The Court of Appeals' mandate issued on May 23, 2017. (ECF No. 11-1 at 12).

Bucholtz filed a notice of postconviction relief on May 24, 2017, requesting the appointment of counsel. (ECF No. 11-1 at 173-74).

On May 30, 2017, the trial court set a resentencing date. (ECF No. 11-2 at 176). On August 10, 2017, Bucholtz was resentenced to 20 years flat time on Count 10, to be served consecutively to his other sentences. (ECF No. 11-2 at 178-81).¹

1 Bucholtz's other sentences included a life sentence without the possibility of parole for 35 years (dating from 2015) on Count 1, a sentence of 20 years on Count 8, to be served consecutively to the sentence on Count 1, and the 20 years ultimately imposed on Count 10, to be served consecutively to the sentence on Count 8. His sentence on Count 11 is 20 years, to be served consecutively to the sentence on Count 10, and his sentence on Count 3 is 20 years, to be served consecutively to Count 11. (ECF No. 11-1 at 6-7). Accordingly, even if granted parole from his sentence on Count 1, Bucholtz will serve, at a minimum, an additional 80 years.

Bucholtz was appointed post-conviction counsel, who filed a notice on May 30, 2018, averring that, after a complete review of the record and “considering Petitioner's input,” they could find no good faith basis in law or fact for post-conviction relief. (ECF No. 11-3 at 3-7).² Bucholtz was given leave to file a pro se petition. (ECF No. 11-3 at 9-10). In his pro se petition for post-conviction relief, Bucholtz argued: (1) a confrontation call was recorded in violation of his Fourth Amendment rights; (2) the information he provided in the call was obtained “through deception;” (3) the indictment contained faulty information, particularly regarding the dates of the offenses; (4) his trial counsel was ineffective (enumerating 17 bases for a claim of ineffective assistance of trial counsel); (5) the trial court erred by denying his request for a change of counsel; (6) prosecutorial misconduct; (7) insufficiency of the evidence; (8) the trial court erred by allowing admission of certain evidence, such as the confrontation call; and (9) ineffective assistance of postconviction relief counsel. (ECF No. 11-4 at 3-157).

2 Counsel averred they had reviewed, inter alial, the indictment; all minute entries; all pleadings; the confrontation call; the forensic interviews of Bucholtz, the victim, and the victim's mother; the proposed plea agreement; the police reports; the grand jury transcript; the mitigation packet; the presentence report; the trial transcripts; the sentencing transcript; “client correspondence;” “client proposed arguments for Rule 32;” and the appellate court's memorandum decision. (ECF No. 11-3 at 5).

On October 16, 2019, the state habeas trial court denied Bucholtz's petition for post-conviction relief. (ECF No. 11-5 at 42-47). The court found the claims regarding the confrontation call and Bucholtz's admissions during that call, the sufficiency of the evidence, the denial of Bucholtz's request for new counsel, and his claims regarding the admission of evidence, were precluded pursuant to Rule 32 of the Arizona Rules of Criminal Procedure because Bucholtz failed to raise the claims at trial or on appeal. (ECF No. 11-5 at 44-45). Regarding the dates of offenses stated in the indictment, the court found the claim was procedurally precluded because the Arizona Court of Appeals had considered and rejected the claim. (ECF No. 11-5 at 45). The state habeas trial court denied Bucholtz's claims of ineffective assistance of trial counsel, finding Bucholtz made only conclusory claims and failed to state any facts in support of his claims; the court also found Bucholtz failed to allege how the alleged deficiencies were prejudicial. (ECF No. 11-5 at 45-46). Regarding ineffective assistance of post-conviction counsel, the court concluded the claim was not cognizable, citing Rule 32.4(c) of the Arizona Rules of Criminal Procedure. (ECF No. 11-5 at 46). Finally, regarding the claim that the confrontation call was altered by the prosecutor, the court found that Bucholtz failed to present any evidence supporting that claim and therefore failed to raise a colorable claim. (ECF No. 11-5 at 47). Bucholtz moved for reconsideration, which was denied. (ECF No. 11-5 at 49-50, 52).

On March 16, 2020, Bucholtz filed a petition for review of the trial court's denial of his petition for postconviction relief, arguing the same claims presented to the state habeas trial court. (ECF No. 11-5 at 54-77). Bucholtz added claims that he was illegally tracked using GPS technology and that the United States Marshal failed to secure his personal property when he was arrested. (ECF No. 11-5 at 59).

On September 29, 2020, the Arizona Court of Appeals summarily granted review but denied relief. See State v. Bucholtz, 2020 WL 5793808, at *1 (Sept. 29, 2020). Bucholtz did not seek review in the state supreme court and the appellate court's mandate issued on November 24, 2020. (Id.).

Bucholtz asserts he is entitled to federal habeas relief because:

1. His Fourth Amendment right to privacy was violated by both the recording of a confrontation call and “the wire-tapping.” (ECF No. 1 at 16; ECF No. 16 at 6).

2. His rights to due process of law and a fair trial were violated by “inaccurate information” in the indictment. (ECF No. 16 at 8).

3. His Fourth Amendment rights and his right to due process were violated when police arrested him using warrantless GPS surveillance. (ECF No. 16 at 10).

4. Ineffective assistance of counsel prior to trial. (ECF No. 16 at 8).

5. Ineffective assistance of counsel during trial.

6. The trial court erred by denying his motion for change of counsel.

7. The trial court erred by granting the prosecution's motion to amend the indictment.

8. Judicial error during sentencing.

9. Prosecutorial misconduct

10. Ineffective assistance of post-conviction counsel.³

3 In his Reply, Bucholtz contends Respondents have mischaracterized his claims for relief. Bucholtz's initial habeas pleading is 436 pages in length. Bucholtz's claims for relief are presented here as he clarifies those claims in his Reply.

Respondents contend relief is precluded by the Anti-Terrorism and Effective Death Penalty Act's statute of limitations. Respondents also argue Bucholtz's claims are procedurally defaulted, with the exception of his claims of ineffective assistance of counsel, and they further assert his claim that his post-conviction counsel was ineffective is non-cognizable in a habeas action.

11. Analysis

A. Governing Law

1. Statute of limitations

Bucholtz's petition for a federal writ of habeas corpus is not barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions begins to run on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).

To assess the timeliness of the pending petition, the Court must first determine the date on which Bucholtz's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). Bucholtz's convictions became final at the conclusion of direct review after his resentencing. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007), cited in Hess v. Ryan, 651 F.Supp.2d 1004, 1021 (D. Ariz. 2009); Hernandez v. Ryan, 2012 WL 2017776, at *6 (D. Ariz. May 1, 2012). See also Ferreira v. Secretary, Dep't of Corr., 494 F.3d 1286 (11th Cir. 2007). Bucholtz was resentenced on August 10, 2017, and had 20 days thereafter to file a notice of appeal. See Ariz. R. Crim. P. 31.2(a)(2)(A). Bucholtz did not appeal from his resentencing and, accordingly, his convictions were final on August 30, 2017.

The AEDPA's statute of limitations is tolled during the pendency of a properly-filed state action for post-conviction relief. When his convictions and sentences became final after resentencing, Bucholtz had already filed a state action for post-conviction relief. Accordingly, the one-year statute of limitations was tolled until the completion of Bucholtz's post-conviction relief proceeding.

The state habeas trial court denied Bucholtz's post-conviction petition, and the Arizona Court of Appeals' order granting review and denying relief issued September 29, 2020. Bucholtz did not seek review in the Arizona Supreme Court and, accordingly, the appellate court's mandate in the state post-conviction action issued November 24, 2020. The AEDPA's statute of limitations was no longer tolled and began to run the next day, November 25, 2020, and expired November 24, 2021. See, e.g., Wells v. Ryan, 2015 WL 9918159, at *9 (D. Ariz. Aug. 13, 2015), report and recommendation adopted by 2016 WL 319529 (D. Ariz. Jan. 27, 2016). Accordingly, Bucholtz's federal habeas petition, docketed November 16, 2021, was filed within the one-year statute of limitations.

Respondents contend the statute of limitations began to run on the date the Arizona Court of Appeals' order denying relief in Bucholtz's post-conviction action was entered, rather than the date the mandate issued, citing with disapproval Celaya v. Stewart, 691 F.Supp.2d 106 (D. Ariz. 2010). (ECF No. 11 at 9-11). Respondents' arguments are not persuasive and are contrary to decisions of the District of Arizona holding that, where the Arizona Court of Appeals has granted review of the trial court's decision on a post-conviction petition and denied relief, and where the petitioner does not seek further review, the post-conviction action is pending for purposes of statutory tolling pursuant to § 2244(d)(2) until the mandate is issued. See Hawkins v. Shinn, 2022 WL 3636749, at *8-9 (D. Ariz. July 5, 2022), report and recommendation adopted by 2022 WL 3598248 (D. Ariz. Aug. 23, 2022); Leary v. Shinn, 2021 WL 4503458, at *3 n.4 (D. Ariz. Sept. 30, 2021); Burns v. Ryan, 2021 WL 1530071, at *5 n.7 (D. Ariz. Apr. 19, 2021), report and recommendation adopted by 2021 WL 1910561 (D. Ariz. May 12, 2021); Tracy v. Shinn, 2020 WL 6106149, at *4 (D. Ariz. May 19, 2020) (“Petitioner's PCR proceedings were no longer pending when the Arizona Court of Appeals issued its mandate on March 12, 2018.”), report and recommendation adopted by 2020 WL 5793412 (D. Ariz. Sept. 29, 2020); Dixon v. Ryan, 2018 WL 3215655, at *2-3 (D. Ariz. Apr. 2, 2018), report and recommendation adopted by 2018 WL 3209417 (D. Ariz. June 29, 2018). See also Bassett v. Ryan, 2021 WL 6427668, at *6 (D. Ariz. Dec. 1, 2021), report and recommendation adopted by 2022 WL 112195 (D. Ariz. Jan. 12, 2022). Accordingly, denying habeas relief on the basis of Respondents' statute of limitations argument is not recommended.

2. Exhaustion and procedural default

Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).

To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition; additionally, in both the state court action and his § 2254 petition the petitioner must the same facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004) (emphasis added).

A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id., 548 U.S. at 92.

[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his

claims to the highest state court and would now be barred by a state procedural rule from doing so.

Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). Pursuant to this doctrine, an implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).

The doctrine of procedural default provides that a federal habeas court may not review a habeas claim when a state court declined to consider the merits of the claim on the basis of an “adequate and independent” state procedural rule, such as those governing waiver and the preclusion of claims. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017). The doctrine bars a federal court from considering the merits of a habeas claim when the state court explicitly invoked a state procedural rule to bar the claim, even if the state court does so as a separate basis for its decision. See Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996).

However, “a state court's application of a procedural rule can preclude federal habeas review only if the rule is independent of federal law and adequate to support the judgment.” Williams v. Filson, 908 F.3d 546, 577 (9th Cir. 2018). See also Coleman, 501 U.S. at 728. To be “independent,” “the state law basis for the decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state court's application of a procedural bar does not become interwoven with and dependent upon an antecedent federal constitutional rule where the state court discusses the merits of a claim solely to determine whether the petitioner can establish cause and prejudice to overcome a procedural default, for example, when the claim is presented in the context of a state post-conviction action which allows for some claims to be heard notwithstanding the failure to raise the issue on appeal or in a previous post-conviction action. See Williams, 908 F.3d at 579; Moran, 80 F.3d at 1269. To be deemed adequate, the state procedural rule on which the state court relied must be firmly established and consistently applied. Beard v. Kindler, 558 U.S. 53, 60 (2009); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). A state rule is considered consistently applied and well-established if the state courts follow it in the “vast majority of cases.” Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009), citing Dugger v. Adams, 489 U.S. 401, 417 n.6 (1989).

If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, Bucholtz bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the State's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner's lack of legal expertise is not cause to excuse a procedural default. See, e.g., Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 908 (9th Cir. 1986). To establish prejudice, a habeas petitioner must show the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019), cert. denied, 140 S.Ct. 2746 (2020); Date, 619 F.Supp.2d at 766.

Petitioners who default federal habeas claims in state court may also obtain review if they show that failure to consider the claims would result in a fundamental miscarriage of justice. See Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). See also Valencia v. Ryan, 2012 WL 1681991, at *4 (D. Ariz. Jan. 9, 2012). Because the required showing is one of factual innocence, the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995).

3. Standard of review of exhausted claims

Pursuant to 28 U.S.C. § 2254(d)(1), a federal court cannot grant habeas corpus relief to a state prisoner unless the petitioner demonstrates the state court's decision denying the claim presented to the federal court “was contrary to” or an “unreasonable application” of federal law as clearly established in the holdings of the Supreme Court at the time of the state court decision, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97-98 (2011). This standard is “difficult to meet.” Id. at 102. It is a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted).

A state court's decision is “contrary to” federal law if it applies a rule of law that contradicts the “controlling” law set forth in Supreme Court cases at the time of the state court's decision, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and arrives at a result different from Supreme Court precedent. E.g., Mitchell v. Esparza, 540 U.S. 12, 14 (2003). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court's decision.'” Id. at 101, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Furthermore, a state court's decision is not an unreasonable application of clearly established federal law if it merely declines to apply a specific legal rule that has not been squarely established by the Supreme Court. Harrington, 562 U.S. at 101. The Court must evaluate the application of the Supreme Court's holdings in the context of the established rule's specificity: “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. (internal quotation mark omitted). “[W]here the precise contours of [a] right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotation marks omitted).

Under § 2254(d)(2), a federal court is relieved of AEDPA deference when a state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” To show such an error occurred, the petitioner must establish that the state court's decision rested on a finding of fact that is “objectively unreasonable.” Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004), quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “The question under AEDPA is not whether a federal court believes the state court's [factual] determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). See also Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016).

The AEDPA requires federal courts to train their attention on the reasons why the state court denied relief. See Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018). The inquiry requires federal courts to look to the last reasoned state court opinion deciding a petitioner's federal claims. Id. at 1192. The Arizona Court of Appeals summarily adopted the state habeas trial court's reasoned opinion finding some of Bucholtz's claims procedurally defaulted and findings his claims of ineffective assistance of counsel without merit. Where the decisions of higher state courts are silent and do not disclose the reason for denying relief, the Court must “look through” the mute decisions to the last state court decision that provides a relevant rationale. Id. See also Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020). Federal habeas courts presume that the higher courts, through their mute decisions, agreed with and adopted the reasoning of the lower court. Wilson, 138 S.Ct. at 1192; Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016). This presumption extends to a lower court's imposition of a procedural bar to the consideration of the merits of a constitutional claim. See Kernan v. Hinojosa, 578 U.S. 412, 415 (2016). Federal courts presume that an otherwise mute higher court decision did not silently disregard application of a procedural bar and consider the merits of claim. Id. See also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

Additionally, when assessing whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, the Court's “review ... is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), quoted in Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).

4. The Strickland standard

The “clearly established” federal law regarding an ineffective assistance of counsel claim is stated in the United States Supreme Court's opinion in Strickland. To establish that he was denied the effective assistance of counsel, a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). It is the petitioner's burden to demonstrate both prongs of the Strickland test. E.g., Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). A petitioner bears the burden of demonstrating counsel's choices regarding the presentation of his defense constituted both deficient performance and were prejudicial. See Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009); Rego v. Sherman, 704 Fed.Appx. 634, 638 (9th Cir. 2017); Lazo v. Clark, 387 Fed.Appx. 754, 755 (9th Cir. 2010).

With regard to the performance prong of the Strickland test, the petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. See Id. at 687. Counsel's performance will be held unconstitutionally deficient only if the habeas petitioner proves counsel's actions “fell below an objective standard of reasonableness,” as measured by “prevailing professional norms.” Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010). It is well settled that “counsel's tactical decisions at trial … are given great deference and must [] meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006). Furthermore, “Strickland does not require counsel to investigate every conceivable line of mitigating evidence” or every possible defense. Wiggins v. Smith, 539 U.S. 510, 533 (2003).

To establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This standard for assessing prejudice requires a substantial, not just “conceivable,” likelihood of a different result. Id. at 693. See also Sanchez v. Davis, 994 F.3d 1129, 1139 (9th Cir. 2021), cert. denied sub nom., Sanchez v. Broomfield, No. 22-5109, S.Ct., 2022 WL 9551047 (Oct. 17, 2022). When considering whether a habeas petitioner was prejudiced by his counsel's alleged errors, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. For habeas relief to be warranted, “[c]ounsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable….'” Harrington, 562 U.S. at 104, quoting Strickland, 466 U.S. at 687. When answering this question, the federal habeas court must necessarily consider the strength of the state's case against the petitioner. See Wainwright v. Sykes, 433 U.S. 72, 91 (1977); Djerf, 931 F.3d at 883; Allen v. Woodford, 395 F.3d 979, 999 (9th Cir. 2005) (“even if counsel's conduct was arguably deficient, in light of the overwhelming evidence of guilt, [the petitioner] cannot establish prejudice”).

B. Bucholtz's Claims for Relief

1. Fourth Amendment claim

Bucholtz contends his Fourth Amendment right to privacy was violated by the recording of a confrontation call. He argues his Fourth Amendment right to privacy was violated by both the recording of the confrontation call, and “the wire-tapping” of his cell phone, averring both the confrontation call and the “wire-tapping” “were done without a search warrant.” (ECF No. 1 at 8, 16; ECF No. 16 at 6).⁴

4 Bucholtz contends that the warrantless recording of the call violated his “4th, 5th, 6th and 14th amendment rights.” (ECF No. 1 at 17). However, the Fifth, Sixth, and Fourteenth Amendments are not implicated by the obtaining of evidence without a warrant.

In his state habeas action Bucholtz argued: “The Confrontational Call introduced at Trial as evidence was obtained by an illegal search and seizure, and recorded without my consent,” in violation of his “constitutional rights,” including the Fourth Amendment. (ECF No. 11-4 at 11). The state habeas trial court found the claim precluded for the failure to raise the claim on appeal. (ECF No. 11-5 at 44).

The state habeas trial court found relief on Bucholtz's Fourth Amendment claim regarding the conference call barred by a state procedural rule. The state procedural rule applied by the court to this claim, i.e., Arizona Rule of Criminal Procedure 32.2(a)(3) (finding the failure to raise a claim of error is waived if not presented at trial or on appeal), is independent of federal law, firmly established, and regularly followed. See, e.g., Stewart v. Smith, 536 U.S. 856, 860 (2002); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014). Rule 32.2(a)(3) is an independent and adequate basis for denying relief on a claim procedurally defaulted in the state court and presented in a § 2254 petition. See Stewart, 536 U.S. at 859-60; Martinez v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019), cert. denied, 140 S.Ct. 2771 (2020). Because the state court applied an adequate and independent state procedural rule in declining to review the merits of this claim, it is procedurally defaulted. See Beard, 558 U.S. at 55 (affirming a claim is procedurally barred when a petitioner raised it in state court, but the state court found it barred on an adequate and independent state procedural ground, even when the procedural rule is discretionary rather than mandatory); Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (finding procedural default “applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements”).

Because this claim is procedurally defaulted, the merits of the claim should only be considered if Bucholtz establishes cause for and prejudice arising from his procedural default, or that a fundamental miscarriage of justice will occur absent consideration of the claim's merits. In his Reply in support of his habeas petition, Bucholtz notes Respondents assert some of his claims are procedurally defaulted, and he contends he was diligent in pursuing his state court remedies. With regard to Respondents' allegation that his claims are procedurally defaulted, Bucholtz asserts only that he has “made a diligent effort to exhaust all of [his] state remedies.” (ECF No. 16 at 30-31).⁵ This does not establish cause for, or prejudice arising from, his procedural default of his Fourth Amendment claim. Bucholtz's “diligent effort” does not establish cause for his procedural default of his federal habeas claims in the state court, because cause is established only be the existence of some objective factor external to the petitioner. See Murray, 477 U.S. at 488. And, because both “cause” and “prejudice” must be shown to excuse a procedural default, the Court need not examine the existence of prejudice if the petitioner fails to establish cause. See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991).

5 The bulk of the Reply is devoted to Bucholtz correcting Respondents' characterization of his claims for relief. (ECF No. 16 at 1-26). Bucholtz also refutes the contention that his petition is untimely. (ECF No. 16 at 27-29).

Additionally, Bucholtz fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of his defaulted claims, because he argues he is legally, rather than factually, innocent. Bucholtz has not established it is more likely than not that no reasonable juror would have convicted him in light of new evidence presented in his habeas petition, as he presents no new evidence in his habeas pleadings. See Schlup, 513 U.S. at 327; Cook, 538 F.3d at 1028; Coluccio v. Montana, 469 Fed.Appx. 650, 653 (9th Cir. 2012).

Moreover, regardless of any failure to properly exhaust this claim in the state courts, Fourth Amendment claims regarding an illegal search and seizure are not cognizable in a federal habeas action. See Stone v. Powell, 428 U.S. 465, 494 (1976); Crater v. Galaza, 508 F.3d 1261, 1269 (9th Cir. 2007). Bucholtz had the opportunity to present the claim to the state courts, and he allows his counsel challenged the admission of the confrontation call evidence. If the state has provided a defendant an opportunity for full and fair litigation of their Fourth Amendment claim, federal habeas relief may not be granted on the Fourth Amendment issue. See, e.g., Moorman v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005). Whether the state court correctly decided the Fourth Amendment claim is irrelevant. See Stone, 428 U.S. at 494; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (“The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.”).

2. Accuracy of the indictment

Bucholtz contends his rights to due process of law and a fair trial were violated by “inaccurate information” in the indictment. (ECF No. 16 at 8). In his direct appeal Bucholtz argued a different claim for relief regarding the indictment, asserting the trial court erred by granting the State's motion to amend the date ranges for three counts of the indictment, thereby purportedly violating his rights to due process and to be free of double jeopardy. In his state post-conviction action Bucholtz arguably presented the same claim presented in his federal habeas petition, i.e., in his pro se Rule 32 petition, under the heading “unlawful conduct by law enforcement,” he alleged the indictment contained “faulty information, especially to the date ranges of the offenses.” (ECF No. 11-4 at 7. See also ECF No. 11-4 at 12-14). However, Bucholtz did not explicitly present these claims as violating a specific federal constitutional right, but instead referred to the claim as “unlawful conduct” occurring prior to trial; Bucholtz's post-conviction petition is 157 pages in length and, separately from his claims for relief, he references the First, Second, Third, Fourth, Sixth, and Fourteenth Amendments. (ECF No. 11-4 at 41-42).

The state habeas court found Bucholtz's claim regarding the accuracy of the indictment procedurally precluded by Bucholtz's failure to raise the claim at trial or on appeal, citing Rule 32.2(a) of the Arizona Rules of Criminal Procedure. (ECF No. 11-5 at 44-45). The state procedural rule applied by the state court to this claim, i.e., Rule 32.2, is independent of federal law, firmly established, and regularly followed. See, e.g., Stewart, 536 U.S. at 860; Murray, 745 F.3d at 1016. Rule 32.2(a)(3) is an independent and adequate basis for denying relief on a claim procedurally defaulted in the state court and presented in a § 2254 petition. See Stewart, 536 U.S. at 859-60; Martinez, 926 F.3d at 1225. Because the state court applied an adequate and independent state procedural rule in declining to review the merits of this claim, it is procedurally defaulted. See Beard, 558 U.S. at 55; Insyxiengmay, 403 F.3d at 665. As with his first claim for relief, Bucholtz fails to establish cause for and prejudice arising from his procedural default of this claim, and he fails to show a fundamental miscarriage of justice will occur absent consideration of the merits of the claim.

3. GPS surveillance

Bucholtz contends his Fourth Amendment right to privacy and his right to due process were violated when police tracked and/or surveilled him by using GPS technology, without a warrant, resulting in his arrest. (ECF No. 16 at 10). He “[b]elieve[s] the U.S. Marshall's [sic] tracked [his] movement in an eighteen wheel semi-truck from New Mexico to Arizona (in order to arrest [him]) utilizing GPS surveillance technology in conjunction with [his] cellphone, that wasn't legal at the time.” (ECF No. 1 at 23). Bucholtz allows his counsel could “NOT have ‘object[ed] to the admission of evidence obtained by GPS tracking' as the state claims, because … there wasn't any ‘admission of evidence obtained by GPS tracking …'” (ECF No. 16 at 11). He alleges his “primary issue” is “the unwarranted use of GPS [surveillance] used by law enforcement in order to obtain [his] arrest,” in violation of the Fourth Amendment. (Id.).

Bucholtz procedurally defaulted this claim in the state courts. He did not raise this claim at trial or on appeal. He did not present this claim to the state habeas trial court in his post-conviction action. Bucholtz did present this claim to the Arizona Court of Appeals in his state post-conviction action. (ECF No. 11-5 at 59). However, he did not present the claim as violating his Fourth Amendment rights to privacy and his right to due process, but instead asserted “questionable conduct” by the Marshal, stating: “I believe they tracked my cellphone, using GPS technology, that was not legal at the time.” (ECF No. 11-5 at 59. See also ECF No. 11-5 at 55). He did not provide any further argument with regard to this summary assertion. On September 29, 2020, the Arizona Court of Appeals summarily granted review but denied relief. See Bucholtz, 2020 WL 5793808, at *1.

Bucholtz procedurally defaulted any claim regarding the GPS surveillance by his failure to properly and clearly present a Fourth Amendment claim regarding the GPS tracking to the Arizona Court of Appeals in a procedurally correct manner. Bucholtz failed to present the claim in his direct appeal, thereby forfeiting the claim pursuant to Rule 32.2(a). Bucholtz also failed to present the claim to the trial court in his Rule 32 proceeding prior to raising the claim in his petition for review, procedurally defaulting the claim again. See State v. Vera, 235 Ariz. 571, 573-74 (Ariz.Ct.App. 2014).⁶

6 [W]e ordinarily do not consider issues on review that have not been considered and decided by the trial court; this is particularly true when we are reviewing a court's decision to grant or deny post-conviction relief under Rule 32. See State v. Ramirez, 126 Ariz. 464, 468 [] (App. 1980) (appellate court does not consider issues raised for first time in petition for review); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review “shall contain ... issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review”). State v. Vera, 235 Ariz. 571, 573-74 (Ariz.Ct.App. 2014).

As with his prior claims, Bucholtz fails to establish cause for or prejudice arising from his procedural default of this claim, or that a fundamental miscarriage of justice will occur absent consideration of the merits of the claim. Additionally, as previously noted, a Fourth Amendment claim is not cognizable in a federal habeas action.

4. Ineffective assistance of trial counsel prior to trial

Bucholtz contends his trial counsel was ineffective because counsel insulted him, was rude to him, and suspected him of being mentally incompetent; failed to adequately investigate his case; failed to provide him “case law,” transcripts of the confrontation call, and transcripts of forensic interviews; refused to file motions for evidentiary hearings; “did a real bad job at offering [the plea bargain] to [Bucholtz], then taking it away;” prepared only “a practically incomplete and lame ‘mitigation package' for [him];” failed to investigate his claims regarding witnesses' testimony; and failed to object to the inaccuracy of the indictment. (ECF No. 16 at 8, 14).

Bucholtz presented these claims in his state post-conviction action. (ECF No. 11-4 at 8-9, 12-13). The state habeas trial court summarily denied all of Bucholtz's claims of ineffective assistance of trial counsel. The court determined Bucholtz made only conclusory claims and failed to state any facts in support of his claims, and that Bucholtz failed to allege how the alleged deficiencies were prejudicial. (ECF No. 11-5 at 45-46). Applying the Strickland standard, and noting that review of “counsel's tactical decisions is highly deferential,” the state court concluded:

… Defendant alleges that counsel was ineffective and he lists a number of alleged deficiencies in counsel's representation. See Pages 5-7 of the petition. As to each of his claims, Defendant merely makes conclusory claims and fails to state any facts in support of his claims. Nor does Defendant allege how any of these alleged deficiencies prejudiced him. As such, Defendant has failed to raise a colorable claim of ineffective assistance of counsel.

Further, a review of the record, including trial transcripts, contradicts Defendant's claims that counsel failed to prepare for trial, failed to meet with him, prevented him from testifying, failed to fully apprise him of the length of sentence he faced if he lost at trial and failed to review the plea offer with him.

(ECF No. 11-5 at 45- 46).

The state court's denial of Bucholtz's claims of ineffective assistance of counsel prior to trial was not clearly contrary to nor an unreasonable application of Strickland. Vague and conclusory allegations are insufficient to establish ineffective assistance of counsel. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

That counsel was purportedly rude to Bucholtz does not establish counsel's performance was deficient. The Sixth Amendment does not guarantee a defendant the right to a “meaningful” or even cordial relationship with their attorney. See Morris v. Slappy, 461 U.S. 1, 14 (1983). Cf. Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (holding a defendant's dislike or distrust of counsel does not establish a Sixth Amendment violation). There is no Sixth Amendment requirement that appointed counsel must get along with the defendant, or that counsel and their client must like each other, or even that the defendant trust their attorney. See United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991) (holding an indigent defendant is not entitled to an attorney who he likes and feels comfortable with); Barajas v. Lewis, 2011 WL 665337, at *20-22 (C.D. Cal. Jan.12, 2011), report and recommendation adopted, 2011 WL 662970 (C.D. Cal. Feb.14, 2011). Disagreements regarding trial tactics do not constitute a basis for an unconstitutionally irreconcilable conflict between counsel and the defendant, and “a lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval.” Michaels v. Davis, 51 F.4th 904, 939 (9th Cir. 2022) (internal quotations omitted).

The denial of Bucholtz's claim regarding counsel's pretrial investigation was not an unreasonable determination of the facts presented to the state post-conviction court, and was not an unreasonable application of Strickland.⁷ Counsel's case notes indicate she reviewed a 911 call from the victim's mother and the mother's forensic interviews with Detective Nehrenz and Police Officer Dutton, and counsel interviewed Detective Nehrenz, who witnessed the confrontation call. (ECF No. 1-3 at 26). Counsel was also familiar with the contents of the confrontation call and the forensic interviews with the victim.

7 In response to the petition for state post-conviction relief, the State maintained:

… even at the settlement conference, the trial judge noted that Defendant's attorney had performed a lot of work on the case. [] Furthermore, trial counsel put on the record during trial the number of times she visited Defendant at the jail in order to discuss testimony and trial. Trial counsel stated she visited Defendant several times in order to discuss trial strategy and preparation. [] Defendant did not dispute or object to counsel['s] statements nor did he refute what counsel stated on the record.

(ECF No. 11-5 at 23). The State also noted, with regard to the allegation that counsel should have requested the victim undergo a medical examination, “the Victim reported the abuse in February of 2014, which was three to six years after the date of offenses. [] Any medical evidence could no longer be obtained.” (ECF No. 11-5 at 25-26).

Bucholtz asserts “[d]uring the investigative phase … [counsel] neglected to challenge any of [his] accuser's statements either by interviewing them, or by doing any investigative work.” (ECF No. 1 at 28). Bucholtz lists statements made by the victim and her mother during their forensic interviews which he asserts are false; he contends counsel failed to adequately investigate these statements and challenge the statements and establish contradictions between the pretrial statements and trial testimony. However, Bucholtz does not provide any documentary or admissible evidence of the falsity of the subject statements. Bucholtz impugns the credibility of the victim, but his arguments are based on his conflicting perception of the events in question and his own interpretation of the accuracy of the statements.

Bucholtz contends counsel's performance was deficient for failing to “have a medical examination performed on” the victim, and because counsel “didn't conduct any investigations, or do any interviews with anybody that may have helped my case. Not with the mother or father, not with friends of the family, or with any [acquaintances] from the [neighborhood],⁸ or from our church that we attended for seven years.” (ECF No. 1 at 25-26). The record in this matter, including counsel's case notes and the available trial transcript, indicate counsel thoroughly investigated the available evidence, ably argued to have the evidence of the confrontation call excluded, disputed the timeline of the events in question, noted for the jury the absence of physical evidence (in part because the victim did not report the crimes to her mother until several years after they occurred),⁹ and conferred with Bucholtz and presented his requests regarding a plea deal to the prosecutor (ECF No. 1-3 at 26).¹⁰ Bucholtz fails to overcome the strong presumption that, under the circumstances, counsel's investigation fell within professional parameters.

8 Elsewhere Bucholtz alleges: “I did not get along with either one of the [immediate] neighbors. I was always calling the police on both of them … Eventually, the one neighbor was shot in her own driveway,” and “I had absolutely zero communication with anybody from that neighborhood after I left” in 2013. (ECF No. 1 at 44).

9 There was evidence that the victim told a friend about the ongoing abuse in 2010, “in the 7th grade;” the Mesa Police responded to the friend's report, but Bucholtz was present when the police questioned the victim and the victim denied reporting the abuse to her friend. (ECF No. 1-2 at 43, 47; ECF No. 1-3 at 34). The victim did not report the abuse to her mother until February of 2014, when she was sixteen years of age, after the abuse ended.

10 On the first day of trial defense counsel argued, on a motion in limine, that the confrontation call was not admissible; the trial court ruled the confrontation call “was legal, based on Arizona's one-party consent law.” (ECF No. 1-3 at 27).

With regard to Bucholtz's claim regarding the plea negotiations, counsel's case notes from September 25, 2015, state:

I told [Bucholtz] I asked [the prosecutor] about the 13 years or the 13-20, and she rejected both. He also asked me if he could plea to 19 years. Told him I would ask … Advised him that prosecutor said if she would still offer a plea, it would be 27 yrs. … We discussed the case again, the counts, the elements the State needs to prove, answered his questions, discussed the mandatory sentences again. Client said he was hoping for a better plea. I told client that was not likely.

(Id.). The notes indicate that on October 1, 2015, when Bucholtz asked “about available plea offers,” counsel told him the prosecutor had advised “there will be no other offer,” and that the prosecutor “had rejected the 19 earlier this week.” (Id.). Accordingly, the record in this matter does not support Bucholtz's conclusory and unsupported allegation that defense counsel “offer[ed]” Bucholtz a plea bargain and then “[took] it away.”

Furthermore, Bucholtz's conclusory claim that counsel was ineffective for failing to submit additional mitigation is insufficient to support a Strickland claim; the issue of mitigation is considered a matter of strategy, which is granted extreme deference under Strickland. See Carter v. Davis, 946 F.3d 489, 516 (9th Cir. 2019).

With regard to any prejudice arising from counsel's purportedly miscommunicating a plea offer, in his state post-conviction action Bucholtz argued his counsel failed “to go over with [him] all that entailed rejecting a plea offer, except to say, she told me that I was ‘looking at two life sentences, so what did it matter?'” (ECF No. 11-4 at 17). In response to this allegation, the State averred:

On July 30, 2015 a settlement conference was held … At the settlement conference the sentencing range, the plea offer, and a Donald advisory were given to the Defendant. [] The prosecutor informed Defendant what he faced if he went to trial and lost. [] The State offered Defendant a plea to Sexual Conduct with a Minor with a stipulation of 20-27 years in prison and Attempted Sex Conduct with a Minor with a stipulation to a consecutive lifetime probation tail. [] Defendant claims that his attorney failed to provide him information about the plea agreement and how much prison time he would face if he lost at trial. … Defendant knew what the plea offer was and what amount of prison time he faced if he proceeded to trial and lost.

(ECF No. 11-5 at 21-22).¹¹ The record demonstrates that Bucholtz was not prejudiced by any error of counsel in apprising him of the terms of the proffered plea deal because he was advised of the terms of the ultimate plea deal proffered by the prosecution and the potential consequences of refusing the plea deal and proceeding to trial. According, the state court properly denied this Strickland claim because Bucholtz failed to establish prejudice arising from this purported error of counsel.

11 A “Donald” hearing is an open court hearing before a judge where a defendant is informed of the details of a plea agreement as well as the risks of going to trial and the sentencing range that the defendant would face were he to be convicted on some or all of the charges against him. See State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (Ariz.Ct.App. 2000).

In his state post-conviction action Bucholtz asserted his counsel “refused to file a motion for an evidentiary hearing, as requested.” (ECF No. 11-4 at 16). The state habeas trial court denied Bucholtz's claims of ineffective assistance of trial counsel, noting Bucholtz failed to state any facts in support of his claims and failed to allege how the alleged deficiencies were prejudicial. (ECF No. 11-5 at 45-46). This was not clearly contrary to nor an unreasonable application of Strickland. In his federal habeas pleadings Bucholtz does not specify what evidence he sought to exclude via an evidentiary hearing, much less establish that a hearing would have resulted in the exclusion of evidence which otherwise resulted in a guilty verdict. Similarly, Bucholtz does not develop his allegation that he was prejudiced by counsel's alleged failure to provide him with copies of case law or the forensic interviews with the victim and her mother.

The state habeas trial court's conclusion that Bucholtz failed to establish any prejudice arising from counsel's purported pretrial deficient performance was not an unreasonable application of Strickland. Prejudice is only presumed if “counsel entirely fails to subject the prosecution's case to meaningful adversarial testing ...” United States v. Cronic 466 U.S. 648, 659 (1984). The record in this matter establishes that the state habeas court could reasonably conclude that an adequate defense was presented to the jury. Bucholtz fails to establish prejudice arising from counsel's failure to investigate because he presents no evidence or persuasive substantive argument that further investigation, if undertaken, would have led to a different result. See Helton v. Ryan, 2010 WL 331350, at *12-13 (D. Ariz. Jan. 26, 2010). Additionally, Bucholtz is unable to establish prejudice from any of counsel's alleged errors due to the weight of the evidence against him presented at trial. In addition to the victim's testimony, in the confrontation call with the victim's mother Bucholtz admitted that he engaged in oral sex with the victim “‘one time for about two seconds;'” that he “touched [the victim] inappropriately;'” that he rubbed the victim's vaginal area “briefly;” that he “performed oral sex” on the victim; and that he touched the victim's breasts. (ECF No. 1-2 at 49). The actions which Bucholtz admitted were consistent with the victim's statements in the forensic interview and her testimony at trial. (ECF No. 1-2 at 60-61; ECF No. 1-3 at 1-10).

On federal habeas review a Strickland claim adjudicated on the merits by a state court is reviewed under a “highly deferential” or “doubly deferential” standard. Atwood v. Ryan, 870 F.3d 1033, 1057 (9th Cir. 2017); Visciotti v. Martel, 862 F.3d 749, 770 (9th Cir. 2016). The “highly deferential” standard of review “‘requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'” Visciotti, 862 F.3d at 770, quoting Strickland, 466 U.S. at 689. See also Bolin v. Davis, 13 F.4th 797, 804 (9th Cir. 2021), cert. denied sub nom. Bolin v. Broomfield, No. 21-7794, 2022 WL 4652421 (U.S. Oct. 3, 2022) (“We are required not only to give Bolin's attorneys the benefit of the doubt, but to consider the possible reasons they may have had for their decisions.”). The “doubly deferential” standard of review requires the habeas court applying Strickland to determine whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard . . .” Harrington, 562 U.S. at 788 (emphasis added). Even if the Court could conclude on de novo review that the petitioner might satisfy both prongs of the Strickland test, the “AEDPA requires that a federal court find the state court's contrary conclusion” “objectively unreasonable before granting habeas relief.” Woods, 764 F.3d at 1132 (emphasis added). Relief is warranted only if no reasonable jurist could disagree that the state court erred in its application of the Strickland analysis. See Cullen, 563 U.S. at 188; Murray, 746 F.3d at 465-66. Pursuant to this stringent standard, Bucholtz fails to meet his burden of showing that the state court's denial of his ineffective assistance of counsel claims was an objectively unreasonable application of Strickland.

5. Ineffective assistance of counsel at trial

Bucholtz asserts his counsel was ineffective because she did not follow his preferred defense strategy of admitting some crimes but not others; gave an insufficient opening statement; ineffectively challenged inaccurate witness testimony; “strongly urged” him not to testify; filed a motion for acquittal over his objection; gave an insufficient closing argument; and assisted the trial court while the court was calculating the sentence and failed to object to judicial error at sentencing. (ECF No. 1-1 at 23).

In denying relief on these claims, the state habeas trial court found:

As to each of his claims [of ineffective assistance of counsel], Defendant merely makes conclusory claims and fails to state any facts in support of his claims. Nor does Defendant allege how any of these alleged deficiencies prejudiced him. As such, Defendant has failed to raise a colorable claim of ineffective assistance of counsel.

(ECF No. 11-5 at 46).

Counsel's performance was not deficient for adopting a strategy other than the one promoted by Bucholtz. Counsel's choice of a reasonable defense strategy, and any decisions made regarding the implementation of that strategy, are “virtually unchallengeable.” Strickland, 466 U.S. at 690. See also Ayala v. Chappell, 829 F.3d 1081, 1103 (9th Cir. 2016). It is well settled that “counsel's tactical decisions at trial ... are given great deference and must similarly meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006) (“trial counsel is typically afforded leeway in making tactical decisions regarding trial strategy”). Furthermore, Bucholtz does not demonstrate he was prejudiced by counsel's choice of a defense strategy, including counsel's decision to move for an acquittal at the close of the State's case. Counsel's strategy was to challenge the victim's credibility and the lack of evidence as to when and whether the alleged acts of abuse occurred, particularly Counts 9 and 10, and the age of the victim when the alleged acts of abuse occurred. (ECF No. 1-3 at 43-44). This strategy proved effective, inter alia as demonstrated by the vacating of a conviction and a sentence on appeal because of the lack of evidence regarding the dates of some offenses. Counsel also argued to the jury that there was insufficient evidence to support a finding of guilt, emphasizing that the entire case rested on the “credibility and the memory” of the victim, highlighting for the jury that the victim had repeatedly used the term “estimate” as to when the events occurred and noting there was no physical evidence or third-party eyewitness evidence of abuse. (ECF No. 1-3 at 45-46). Counsel also noted that in 2010 the victim had denied any abuse, undermining her credibility. (ECF No. 1-3 at 47). Counsel also elicited testimony from the victim's mother that she had never seen “one instance of any sexual activity between” Bucholtz and the victim, although she was purportedly present in the home during some of the charged crimes. (ECF No. 1-3 at 47-48). This strategy was not objectively unreasonable given counsel's options after Bucholtz decided not to accept a plea offer and after the motion in limine to exclude the confrontation call evidence was denied.

With regard to Bucholtz's decision as to whether to testify, counsel's case notes dated October 2, 2015, indicate Bucholtz:

… had changed his mind and wanted to testify, so we visited him to prepare for testimony. I warned him about not bringing up the fact that [the victim's mother, to whom he was married] is his cousin, and that they never had sex during the marriage, and no character stuff like bring[ing] up the physical abuse allegations. Conducted a brief direct examination, covering the basics of the timeline. Do not want an extensive direct because client is just confessing to the crimes. After I finished the direct [another defense staff member] conducted a cross-examination. Client confessed. He admitted he was guilty. We advised client not to testify because his testimony blaming [the victim] was not helpful to his case … We also discussed the sentencing laws over and over again; client expressed frustration that I didn't seem to care about “mitigation.” I advised him several times, as I have in the past, that if he is convicted, the judge must give him life sentences on the 5 sexual conduct counts, if the jury finds [the victim] was 12 or under; and even if she was 13 or 14, the judge would have to sentence him to 65 years alone on those counts, plus the molestation counts.

(ECF No. 1-3 at 26). The notes from September 25, 2015, state: “Client said he didn't want to testify now after reading my letter and understanding what could happen if did testify to certain thing.” (Id.). The notes indicate that on October 1, 2015, when counsel told him the prosecutor had advised “there will be no other offer,” and that the prosecutor “had rejected the 19 earlier this week,” Bucholtz told counsel he “now wants to testify.” (Id.). Counsel's notes dated November 1, 2015, indicate she advised Bucholtz “again not to testify. Discussed it at length with him. Client said he would probably not testify, and would let me know by the time the State rested.” (ECF No. 1-3 at 27). At trial, prior to resting the defense case, defense counsel requested a colloquy with Bucholtz regarding his right to testify and his decision not to testify. (ECF No. 1-3 at 31). The court granted that request, and the colloquy occurred on the record. (Id. See also ECF No. 1-7 at 45-46). With regard to this claim, in the state habeas action the State argued:

The trial court conducted a colloquy with Defendant about his decision not to testify. The trial court asked Bucholtz if he understood he was at trial to which he answered “Yes.” [] The trial court then asked if he understood he was facing a significant amount of mandatory prison if he was convicted of

the charges, to which Defendant answered “Absolutely” [] The trial court asked Defendant if he understood that if the jury found him guilty, he could be sentenced to a lifetime prison sentence with a possibility of parole after a period of time, to which Defendant answered, “Yes Your Honor”. [] The trial court asked Defendant if he understood that he had the right to testify at trial to which he answered, “Yes Your Honor”. [] The trial court asked Defendant if he had talked with his lawyer regarding whether it was in his best interest to testify, to which he answered, “She advised me not to.” [] The trial court asked Defendant if trial counsel answered all of his questions, which he replied, “Yes she did”. The court asked Defendant if he wanted to testify, and he replied “No Your honor. I'm good”. [] … Finally, the trial court asked Defendant if there was any reason why he could not make a good decision about testifying on his own behalf and he answered, “No”.

(ECF No. 11-5 at 24-25).

Accordingly, the record in this matter does not support Bucholtz's conclusory and unsupported allegation that counsel persuaded Bucholtz not to testify, or that counsel's advice not to testify under the circumstances was not in accordance with prevailing professional norms, or that he was prejudiced by accepting this advice.

Bucholtz also contends counsel failed to challenge inaccurate witness testimony, i.e., that of the victim and her mother. The state court's denial of this claim was not an unreasonable application of Strickland. The federal courts have generally held that examination of a victim or the victim's close relative is a matter of strategy, because of the risk such examination poses with regard to the jury's perception of the defense. See, e.g., Brown v. Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008) (“We give great deference to counsel's decisions at trial, such as refraining from cross-examining a particular witness.” (internal quotations omitted)); Dows v. Wood, 211 F.3d 480, (9th Cir. 2000) (“although [counsel] might have conducted a more thorough and vigorous examination of the alleged rape victim, the state courts' conclusion that his conduct was objectively reasonable is not an incorrect application of Supreme Court precedent or an unreasonable determination of fact sufficient to grant a petition for habeas corpus under section 2254.”); Hawkins v. Shinn, 2022 WL 3636749, at *22 (D. Ariz. July 5, 2022); Bunker v. Boe, 2018 WL 6579047, at *8 (W.D. Wash. Sept. 12, 2018) (“… cross-examination of the victim of a violent crime is a nuanced matter of trial strategy, fraught with peril in a jury trial. The extent of cross-examination is a matter of judgment and strategy.”).

Broadly construing his pleadings, Bucholtz contends counsel's opening and closing statements did not present his chosen defense, i.e., to admit to some of the crimes but not others. In his state habeas action Bucholtz asserted counsel's closing statement was “brief,” and “inaccurately reflected how I wish to be represented. Although I admitted some guilt, she again asked the jury for a ‘not guilty' verdict.” (ECF No. 11-4 at 34). As previously noted, counsel's reasonable choice of a defense is a strategic decision which is virtually unchallengeable. Nor has the Supreme Court held that arguing a defense contrary to what the defendant wishes during opening and/or closing statements constitutes deficient performance, particularly when the petitioner has not established prejudice or shown that the alleged error did not comprise a reasonable trial strategy. See Thomas v. Muniz, 809 Fed.Appx. 376, 378 (9th Cir. Apr. 21, 2020); Lazo v. Clark, 387 Fed.Appx. 754, 755 (9th Cir. July 15, 2020); Chen v. Neven, 676 Fed.Appx. 659, 661 (9th Cir. Jan. 19, 2017); Mitchell v. Schriro, 2008 WL 2397337, at *6 (D. Ariz. June 9, 2008); Glass v. Gomez, 17 F.3d 394, 1194 WL 5749, at *1 (9th Cir. Jan. 7, 1994) (concluding counsel was not ineffective for not making an opening or closing statement, as these were reasonable strategic choices). Cf. Saesee v. Horel, 2009 WL 3857483, at *14 (E.D. Cal. Nov. 17, 2009) (collecting cases from lower courts finding ineffective assistance of counsel with regard to opening argument only when counsel promised the jury they would hear evidence which was ultimately not presented). Bucholtz makes only conclusory allegations that counsel's opening statement and closing argument constituted deficient performance, and presents only conclusory allegations that he was prejudiced by these alleged errors.

6. Trial court error in denying motion to substitute counsel

Bucholtz contends the trial court erred by denying his motion for change of counsel. The only “supporting facts” he offers in support of this claim are the following: “At a hearing, I asked [the judge] for a change of counsel, he scoffed and said, ‘You're lucky that you even have counsel.'” (ECF No. 1-1 at 25). Bucholtz did not raise this claim of trial court error in his appeal. Bucholtz did assert in his state post-conviction petition that the trial court erred by denying his “request for change of counsel.” (ECF No. 11-4 at 8). The state habeas trial court found this claim precluded by Bucholtz's failure to raise the claim at trial and/or on appeal. (ECF No. 11-5 at 45). The trial court, therefore, applied an express procedural bar to relief on this claim. As with his other procedurally defaulted claims, Bucholtz fails to show cause for or prejudice arising from his default of this claim in the state courts. Nor has Bucholtz established a fundamental miscarriage of justice will occur absent consideration of the merits of this claim.

7. Amendment of the indictment

At trial, after the State closed its case, the State filed a motion to amend the indictment as to the offense date range for Counts 3, 4 and 5, citing Rule 13.5 of the Arizona Rules of Criminal Procedure. (ECF No. 11-2 at 23). The State asserted that the offense date range in the indictment, i.e., “on or between May 1, 2008 and June 31, 2010,” was a “technical defect,” which should be corrected to “on or between May 1, 2010 and July 31, 2012.” (ECF No. 11-2 at 23). The State moved to amend the indictment to conform to the victim's trial testimony as to when the crimes occurred. Defense counsel objected, arguing the indictment was not defective and that the State was seeking to alter the date range to conform to the victim's testimony rather than addressing the inconsistency between the victim's testimony and her pretrial statements regarding when the crimes occurred. (Id.). Counsel also asserted that allowing the amendment would deprive the defendant of his right to present a complete defense by eliminating his ability to attack the victim's credibility. (Id.). Counsel further argued that allowing the amendment after the State rested its case would adversely affect the defense strategy. (ECF No. 11-2 at 23-24).

The trial court granted the State's motion after hearing argument, noting, inter alia, that Bucholtz did not suffer prejudice because the change in dates took him “out of the lifetime sentencing range for the count of sex conduct with a minor …” (ECF No. 11-2 at 24-25).

In his direct appeal, Bucholtz asserted “The Amendment Violated Bucholtz's Constitutional Rights,” and that “the amended indictment does not comply with the requirements of the Constitution.” (ECF No. 11-2 at 29, 31). However, in this section of Bucholtz's brief, appellate counsel did not cite to any specific federal constitutional right and cited only one federal legal opinion, United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (1997). (ECF No. 11-2 at 31).¹² Bucholtz's counsel also summarily asserted that the “nature and timing of the amendment … denied Bucholtz a fair trial,” without mentioning the Sixth Amendment or any federal legal opinion holding that the amendment of an indictment at the close of the prosecution's case violated the defendant's federal constitutional rights. The only federal legal opinions cited in the appellate brief were Strickland and Tsinhnahijinnie (ECF No. 11-2 at 6-7), and no federal constitutional amendment was cited. (ECF No. 11-2 at 8).

12 Tsinhnahijinnie is not on point:

Tsinhnahijinnie's defense was in fact prejudiced by the disparity between the date charged and the evidence. His lawyers developed and presented documentary evidence that Tsinhnahijinnie, the victim and her mother lived off the Reservation in the Phoenix area until August 4, 1992. That made it impossible for the crime to have occurred on the Reservation in June or July 1992. Federal jurisdiction required that the crime take place on the Reservation. The child testified that the criminal touching took place on the Reservation, not while they lived in the off Reservation apartment.

United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997).

The Arizona Court of Appeals found and concluded:

Counts 3-5 of the indictment charged Defendant with sexual conduct with a minor, molestation of a child, and sexual abuse respectively. Defendant contends the superior court erred by permitting the State to amend the date range for these counts after the victim testified at trial about her age at the time of the offenses.

In granting the State's motion to amend, the superior court did not specifically state the portion of Arizona Rule of Criminal Procedure (“Rule”) 13.5(b) upon which it relied. The State's motion argued both a “formal or technical defect” in the indictment, as well as a request to amend the indictment to conform to the victim's trial testimony. We will affirm the superior court's ruling if it was correct for any reason. See State v. Swanson, 172 Ariz. 579, 585 (App. 1992).

Rule 13.5(b) governs the amendment of criminal charges and provides, in pertinent part:

The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding.

“We review for an abuse of discretion a court's decision to permit the amendment of an indictment.” State v. Buccheri-Bianca, 233 Ariz. 324, 329 [] (App. 2013).

The dates of the count 3-5 offenses are not elements of the charged crimes, so amending the date range did not lead to substantively different charges. See State v. Jones, 188 Ariz. 534, 544 (App. 1997) (“An error as to the date of the offense alleged in the indictment does not change the nature of the offense, and therefore may be remedied by amendment.”). Nor did Defendant establish prejudice stemming from the amendment. [footnote 3: Indeed, the amended date range for count 3 meant that Defendant was subject to a presumptive 20-year sentence, rather than the mandatory life sentence required if the victim had been 12 or younger, as the date range initially charged reflected. See A.R.S. §§ 13-705(A), (C)]. The record does not suggest Defendant's trial defense was affected by the amendment. Defendant claimed that he never engaged in inappropriate conduct with the victim and emphasized her purported lack of credibility and the absence of corroborating evidence. When the superior court inquired whether there was additional discovery the defense would have conducted or whether a trial continuance was necessary to “conduct additional discovery or additional investigation,” defense counsel responded in the negative. Ultimately, the court ruled:

I'm not sure what the Defendant would have done differently. There's ... a vague allegation that this might have affected his decision whether to testify on his behalf or not, but nothing more specific than that. ... I don't see that the Defendant is prejudiced.

He's not been able to ... point to any particular investigation he might have conducted, had he known that these-this was the date range the State was alleging earlier, and he's not requesting time to conduct any additional investigation or to decide further whether he wishes to testify on his behalf.

The superior court's ruling is supported by the record.

Defendant's reliance on State v. Johnson, 198 Ariz. 245 (App. 2000), and State v. Mikels, 119 Ariz. 561 (App. 1978), is unavailing …

The circumstances here are materially different. The victim's trial testimony was consistent with counts 3-5 of the indictment, which alleged digital penetration, sexual contact, and touching the victim's breast in her bedroom. See A.R.S. § 13-1401(A)(3) (defining “sexual contact,” in relevant part, as “direct or indirect touching, fondling or manipulating of any part of the genitals”). Only the date range was different.

Because the victim testified that the incidents alleged in counts 3-5 occurred when she was in the eighth grade, and absent demonstrable prejudice to the defense, the superior court did not err by amending the date range to reflect that time frame. See State v. Self, 135 Ariz. 374, 380 (App. 1983) (permissible to amend date of alleged offense at close of evidence).

Bucholtz, 2016 WL 6276850, at *1-2.

The only federal legal opinion cited in Bucholtz's appellate brief in support of his claim regarding amendment of the indictment was United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997), a federal criminal case. Tsinhnahijinnie does not support a claim that Bucholtz's federal constitutional rights were violated by amendment of the indictment, as the Fifth Amendment right to be charged by an indictment, acknowledged in Tsinhnahijinnie, has never been applied to the prosecution of criminal defendants by the individual states. The Supreme Court has never made the Fifth Amendment's Grand Jury Clause binding upon the states through the Fourteenth Amendment's Due Process Clause. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993). Thus, Bucholtz is not entitled to habeas relief based upon the alleged improper amendment of the indictment. See Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002) (holding that, beyond notice, a claimed deficiency in a state criminal indictment is not cognizable on federal collateral review); Bae v. Peters, 950 F.2d 469, 478-79 (7th Cir. 1991) (“Since [the petitioner] was not entitled to a grand jury indictment, his claim that the indictment's amendment deprived him of his right to a grand jury indictment states no federal claim upon which to grant a writ of habeas corpus”).

Furthermore, Bucholtz failed to fairly present a federal constitutional claim to the state appellate court by “plainly” identifying a specific federal constitutional guarantee in his pleading. See Neese v. Ryan, 2017 WL 5157250, at *10 (D. Ariz. Aug. 16, 2017), report and recommendation adopted, 2017 WL 5127253 (D. Ariz. Nov. 6, 2017). “Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005) (holding that a habeas petitioner did not give state appellate court fair opportunity to rule on federal due process claim by concluding their brief with a scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory). See also Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) (noting exhaustion demands more than a citation to a general constitutional provision, detached from any articulation of the underlying federal legal theory); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (holding that a habeas petitioner did not exhaust a federal claim by averring in state court: “Finally, the errors complained of above, individually and cumulatively denied appellant Due Process and a fair trial under federal and state constitutions”); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”).

Additionally, “[t]he threshold question under AEDPA is whether [a petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under § 2254(d)(1), the court must first identify the “clearly established Federal law,” if any, that governs the claim on habeas review. “Clearly established” federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Id. at 365. Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Id. at 381.

To the extent that any federal constitutional claim was fairly presented to the state appellate court, the denial of relief on a claim that the amendment of an indictment to conform to the evidence, after the prosecution closed its case-in-chief, was not clearly contrary to nor an unreasonable application of clearly controlling federal law as stated by the United States Supreme Court. At the time Bucholtz's conviction became final there was no clearly established federal law on this point of law. Bucholtz's appellate counsel did not cite to any clearly controlling federal law on this claim in his appellate brief, Bucholtz does not cite to any clearly controlling federal law on this point in his habeas pleadings, and the undersigned has not found, despite thorough research, any published or unpublished opinion citing or stating such controlling federal law, i.e., that the allowance of an amendment to a state indictment after the close of the prosecution's case violates the defendant's federal constitutional rights. Accordingly, to the extent this claim presents a federal constitutional claim which was properly exhausted in the state courts, the denial of the claim was not clearly contrary to nor an unreasonable application of controlling federal law. See Knowles, 556 U.S. at 112 (“it is not an unreasonable application of' clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the United States Supreme Court]” (internal quotations omitted)); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“[b]ecause our cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court ‘unreasonably applied clearly established Federal law.” (internal quotations omitted)); Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of holdings from this Court ... it cannot be said that the state court unreasonably applied clearly established Federal law.” (citation and brackets omitted)); Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013). “[I]n the absence of a Supreme Court decision that squarely addresses the issue in the case before the state court ..., or establishes a general principle that clearly extends to the case,” it cannot be said that clearly established federal law exists for purposes of § 2254(d), and a federal court must defer to the state court decision. Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009).

8. Trial court error during sentencing

In his Reply, Bucholtz allows:

“Ground Eight” from my Petition is unfinished. I wasn't able to get more than just a draft done before the deadline. I submitted it anyways, in order to get something in, even if it was just the framework.

The hearing read, “Judicial Error During Sentencing.” I was preparing to say that during sentencing, the court erred in several areas during the sentencing phase of my trial.

There was no mention of any of my constitutional rights being violated, as the State cites.

(ECF No. 16 at 22).

Habeas is not the remedy for every legal error-federal habeas relief is only available to state prisoners to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Habeas petitioners must plead their claims with particularity and must specify all grounds for relief and the facts supporting those grounds. See Rule 2(c), Rules Governing § 2254 Cases; Mayle v. Felix, 545 U.S. 644, 656 (2005). Because Bucholtz's § 2254 petition fails to provide any factual basis for this claim and fails to plead this claim with particularity, the claim is not properly presented and relief on this claim may be denied on this basis.

Furthermore, a federal habeas court is “bound by a state court's construction of its own penal statutes.” Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). See also Missouri v. Hunter, 459 U.S. 359, 366 (1983). “[A] state court's misapplication of its own sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). See also Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Cacoperdo v. Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994) (holding the petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (concluding the defendant's claim that the state court was required to merge his convictions was not cognizable); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992) (“[a]s the Supreme Court has stated time and again, federal habeas corpus relief does not lie for errors of state law”); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the petitioner's claim that the trial court violated a provision of state law in sentencing him was not cognizable).

9. Prosecutorial misconduct

Bucholtz asserts he is entitled to federal habeas relief because he was subjected to prosecutorial misconduct. (ECF No. 1-1 at 32; ECF No. 1-2 at 10).¹³ Bucholtz asserted a claim of prosecutorial misconduct in his state post-conviction action, and the state habeas trial court found the claim waived and precluded because Bucholtz failed to raise the claim on appeal. As with his other procedurally defaulted claims, Bucholtz has not established cause for, or prejudice arising from, his procedural default of his claim of prosecutorial misconduct. Nor has Bucholtz shown a fundamental miscarriage of justice will occur absent consideration of the merits of this claim for relief.

13 Respondents assert Bucholtz's claim is one that his counsel was ineffective for failing to object to prosecutorial misconduct, i.e., that counsel failed to “thoroughly pursue these prosecutorial errors,” and should have “taken these errors to special actions.” In his Reply Bucholtz clarifies: “Although the 6th and 14th Amendments is what I listed in the Addendum of my petition as violated constitutional rights, my primary issue is with the state's violations of my constitutional rights.” (ECF No. 16 at 24).

10. Ineffective assistance of post-conviction counsel

Bucholtz contends his post-conviction counsel's performance was unconstitutionally ineffective. (ECF No. 1 at 14; ECF No. 1-1 at 34-35).

A claim of ineffective assistance of state post-conviction counsel is not cognizable as a claim for relief pursuant to § 2254, which provides: “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). See also Shinn v. Ramirez, 142 S.Ct. 1718, 1735 (2022) (reaffirming that “there is no constitutional right to counsel in state postconviction proceedings”); Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an attorney in state-post conviction proceedings. ... Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Habeas Corpus Resource Cntr. v. United States Dep't of Justice, 816 F.3d 1241, 1244 (9th Cir. 2016). Compare Chavez v. Brnovich, 42 F.4th 1091 (9th Cir. 2022) (acknowledging that a defendant has the right to counsel during their first “of right” appeal, which with regard to an Arizona defendant who has pleaded guilty is their first state post-conviction action).

III. Conclusion

Bucholtz procedurally defaulted most of his federal habeas claims in the state courts by failing to fairly present the claims to the state courts in a procedurally correct manner. Bucholtz fails to establish cause for, or prejudice arising from, his procedural default of his claims. Bucholtz has not established a fundamental miscarriage of justice will occur absent consideration of the merits of his claims. Accordingly, the Court should not consider the merits of the defaulted claims and federal habeas relief may not be granted on any of Bucholtz's defaulted claims for relief. The state courts' denial of relief on Bucholtz's ineffective assistance of trial counsel claims was not an unreasonable application of the controlling federal law. Bucholtz's claim regarding amendment of the indictment was not fairly presented to the state courts as one alleging the violation of a specific federal constitutional right, and the state court's denial of this claim was not clearly contrary to federal law as there is no clearly controlling federal law regarding the amendment of a state indictment at the close of the prosecution's case. Bucholtz's claim of ineffective assistance of post-conviction counsel is not cognizable in a § 2254 action.

IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.

Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Bucholtz seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.