Opinion
No. CV 20-00903 PHX DGC (CDB)
05-07-2021
Laisdel Vieras Cardenas, Petitioner, v. State of Arizona, Attorney General of the State of Arizona, David Shinn, Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL:
Petitioner Laisdel Cardenas, proceeding pro se, docketed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 8, 2020, and filed a third amended petition on August 17, 2020. (ECF No. 12). Respondents answered the third amended petition and Cardenas has filed a reply (ECF Nos. 16 & 17). In this action Cardenas seeks relief from his conviction on one count of possession of dangerous drugs (methamphetamine), pursuant to which he is serving a term of ten years' imprisonment.
Cardenas challenges his conviction in "CR2012-129750-001/CR2010-14770-001." (ECF No. 12 at 1). However, all of his claims relate to his conviction in the 2012 matter.
I. Background
The Arizona Court of Appeals described Cardenas' state criminal proceedings and the evidence produced at his trial as follows:
The state presented evidence of the following relevant facts. As of June 5, 2012, Defendant was on probation for a felony offense. On that date, police contacted him at a retail establishment, arrested him, and searched him
incident to the arrest. The officers found a large amount of cash in Defendant's pants pocket, including a dollar bill that was folded into a triangle. One of the officers unfolded the bill and discovered a white crystallized substance. Later tests revealed that the substance was 87 milligrams of methamphetamine.State v. Cardenas, 2015 WL 5772216, at *1 (Ariz. Ct. App. Oct. 1, 2015), as amended (Oct. 16, 2015).
The state charged Defendant with possession or use of a dangerous drug and misconduct involving weapons, and alleged that Defendant committed the offenses while on probation and had two prior felony convictions.
Before trial, Defendant twice moved to change his court-appointed counsel, and the court granted both requests. The court also granted Defendant's motion to withdraw from a plea agreement, and thereafter assigned Defendant a fourth new attorney after his counsel moved to withdraw. The court denied Defendant' s subsequent motions to change counsel.
The matter proceeded to a jury trial, at which the jury found Defendant guilty of possession or use of a dangerous drug but was unable to decide whether he was guilty of misconduct involving weapons.Id..
***
The jury found that Defendant committed the methamphetamine offense while on felony probation . . . The court revoked Defendant's probation and sentenced him to 3.5 years in prison in [CR2010-14770-001] . . . The court sentenced Defendant to a consecutive term of 10 years for the methamphetamine offense [CR2012-129750-001].
Cardenas [] was indicted for Count 1, possession or use of dangerous drugs, a class 4 felony; Count 2, misconduct involving weapons, a class 4 felony; and Count 3, misconduct involving weapons, a class 4 felony. (Instruments (I), 6). The indictment alleged that, on June 5, 2012, [Cardenas] knowingly used or possessed methamphetamine, that [Cardenas] knowingly possessed a handgun while being a convicted felon, and that [Cardenas] knowingly possessed a handgun while having "illegal alien status." (Id.). Prior to the start of trial, the State moved to dismiss count 3 without prejudice. (Reporter's Transcript of Proceeding (RT), 1/15/14, p. 58). Without objection from defense counsel, the trial court dismissed count 3 without prejudice. (Id.).Appellant's Brief, State v. Cardenas, 2014 WL 7710865 (Ariz. Ct. App.), at *1.
On May 20, 2013, [Cardenas] entered into a change of plea wherein he plead guilty to count 1, as amended, possession or use of dangerous drugs with one prior felony conviction. (I, 49, 51). The plea stipulated that [Cardenas] would be sentenced to prison with a range available from 2.25 years to 7.5 years. (I, 49). The plea also called for restitution in an amount not to exceed $50,000 arising from events in Phoenix Police Department Report 2012 00999181. (Id.). The plea agreement also stipulated that counts 2 and 3 would be dismissed and that no charges relating to Phoenix Police Department Report 2012 00999181 would be filed against Appellant. (Id.). The trial court accepted the plea. (I, 51). On June 24, 2013, Appellant asked to be allowed to withdraw from the plea due to manifest injustice and he asked for new counsel. (I, 53). The trial the court ordered OPDS to appoint Appellant new counsel and ordered that new counsel review the claim of manifest injustice. (Id.).Appellant's Brief, Cardenas, 2014 WL 7710865, at *2-3.
On July 30, 2013, new counsel filed a Motion to Withdraw From Guilty Plea. (I, 56). In that motion, counsel explained that because [Cardenas'] seven year old son had recently died that [Cardenas] was "extremely emotional during his negotiations and change of plea" and, so, did not understand the proceedings. (Id.). On August 12, 2013, the trial court allowed Appellant to withdraw from his plea agreement. (I,59).
Cardenas appealed his conviction, asserting he was denied the effective assistance of counsel and that his "post-plea-withdrawal requests to change counsel should have been granted . . ." Id. He further argued the evidence was insufficient to support his conviction; the search revealing the methamphetamine on his person was unlawful; he was not present with counsel at all critical stages of his criminal proceedings; the number of jurors entering the guilty verdict was insufficient pursuant to state law; the prosecutor engaged in misconduct in closing argument; he was deprived of his right to speak at sentencing; and his sentence was unlawful. Id. at *1-2. The Arizona Court of Appeals denied all of these claims on the merits in a decision issued October 1, 2015 and amended October 16, 2015. Id. at *2-3. The Arizona Supreme Court denied a petition for review on May 4, 2016. (ECF No. 16-1 at 43).
Cardenas filed a notice of post-conviction relief on May 30, 2014, which was dismissed without prejudice pending the outcome of his appeal. (ECF No. 16-1 at 45-47, 49-50). On June 17, 2016, after the Arizona Court of Appeals denied relief in Cardenas' direct appeal, he filed a state action for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure and was appointed counsel. (ECF No. 16-1 at 51-54, 56). Counsel informed the state habeas trial court they could find no meritorious claims to raise on Cardenas' behalf. (ECF No. 16-1 at 56). Cardenas then filed two pro se, procedurally non-compliant Rule 32 petitions, which were dismissed. (ECF No. 16-1 at 59-71, 73-74; ECF No. 16-2 at 2-43, 44-45; ECF No. 16-3 at 2-3). Cardenas sought review of the dismissal of his petition(s) in the Court of Appeals, and the appellate court dismissed the petition for review on February 21, 2017. (ECF No. 16-3 at 71). The appellate court determined:
. . . Rule 32.9 permits a party to seek review of the superior court's "final decision," in a post-conviction relief proceeding. The superior court's order is not final. When the superior court enters its final order, petitioner may timely petition this court for review.(Id.).
IT IS ORDERED dismissing this matter as premature.
Cardenas filed a compliant Rule 32 petition on March 21, 2017 (ECF No. 16-3 at 73-88). The state habeas trial court ordered a response (ECF No. 16-3 at 89), and the State filed a response (ECF No. 16-4 at 2-10). Cardenas filed an amended Rule 32 petition on August 2, 2017 (ECF No. 16-4 at 12-50), and the State filed a response (ECF No. 16-4 at 52-61).
In an order entered March 7, 2018, the state habeas trial court denied relief, concluding most of Cardenas' claims were precluded by his failure to raise them on appeal or because they were adjudicated on appeal. (ECF No. 16-4 at 80-82). The state habeas trial court concluded Cardenas' claims of ineffective assistance of counsel were without merit (ECF No. 16-4 at 82-83), and that Cardenas had not made a colorable showing with regard to his claim of newly discovered evidence (ECF No. 16-4 at 84-85). Cardenas did not seek review in the appellate court, but instead filed a "Notice of Leave of Court for Direct Appeal and Order" in the state trial court on March 14, 2018. (ECF No. 16-4 at 86-88; ECF No. 1 at 4).
In his federal habeas petition, docketed May 8, 2020 (the petition's signature page does not include a date), Cardenas asserts he was denied the effective assistance of counsel at "all critical stages" of his state criminal proceedings and that the evidence introduced at his trial was insufficient to support his conviction. (ECF No. 1).
II. Analysis
A. Statute of limitations
Cardenas' petition for a federal writ of habeas corpus is 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 Cardenas' conviction became final. 28 U.S.C. § 2244(d)(1)(A). Cardenas' conviction became final on August 2, 2016, when the time expired to seek certiorari from the Arizona Supreme Court's denial of review in Cardenas' direct appeal. See Dixon v. Baker, 847 F.3d 714, 717 (9th Cir. 2017); McMonagle v. Meyer, 802 F.3d 1093, 1097 (9th Cir. 2015). In the interim, however, on June 17, 2016, Cardenas initiated an action for state post-conviction relief which tolled the AEDPA statute of limitations. Cardenas' state action for post-conviction relief remained pending until April 6, 2018, when the time expired for Cardenas to properly seek review in the Arizona Court of Appeals from the state habeas trial court's denial of relief on March 7, 2018. See Ariz. R. Crim. P. 32.9(c)(1).
Cardenas' first three post-appeal Rule 32 petitions were deemed "non-compliant" by the state habeas trial court and, therefore, it is arguable whether they were "properly filed" state actions for post-conviction relief. However, even allowing the initiation of Cardenas' post-appeal Rule 32 action occurred on the date the first of these petitions was filed, his federal habeas petition is still not timely.
Accordingly, the statute of limitations on Cardenas' federal habeas petition began running on April 7, 2018 and expired April 7, 2019. His federal habeas petition, docketed May 8, 2020, was filed approximately thirteen months after the statute of limitations expired.
The one-year statute of limitations for filing a federal habeas petition may be equitably tolled if extraordinary circumstances beyond the petitioner's control prevented them from filing their petition on time. See Holland v. Florida, 560 U.S. 631, 645 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014). As to the first element, "[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal citations and quotations omitted). As to the second element, "[e]quitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotations and citations omitted). Thus, the "extraordinary circumstance" must be attributable to an external force rather than a petitioner's lack of diligence or his lack of legal knowledge. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is also available if the petitioner establishes their actual, factual innocence of the crimes of conviction. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014).
When an otherwise time-barred habeas petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial," and the petitioner also asserts a colorable claim that his state criminal proceedings involved non-harmless constitutional error, the Court may consider the petition on the merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citing Schlup v. Delo, 513 U.S. 298, 329 (1995). The Supreme Court has cautioned, however, that "tenable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. --------
Equitable tolling is to be rarely granted. See, e.g., Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). It is the petitioner's burden to establish that equitable tolling is warranted in his case. See Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004). To be entitled to equitable tolling Cardenas must show "extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter, 620 F.3d at 959 (emphasis added and internal quotations omitted). See also Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007) (holding the petitioner must establish a "causal connection" between the extraordinary circumstances and their failure to file a timely petition).
Cardenas asserts he is a "Spanish speaking individual," who must seek help from other inmates to translate legal texts into Spanish and translate legal pleadings into English. (ECF No. 17 at 3).
[A] non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source. . . . a petitioner who demonstrates proficiency in English or who has the assistance of a translator would be barred from equitable relief.Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006).
In response to the allegation that his petition is not timely, Cardenas claims he was frequently transferred "from prison to prison," and that the prison system "lost" his legal materials, preventing him from "diligently investigating and preparing [his] appeals and habeas petition." (ECF No. 17 at 2). Cardenas asserts that in September of 2016, after his conviction became final, he was transferred to a maximum security prison complex where he was "isolated" in a detention unit, and he was then moved to the general population, where he was "allowed only one day of access to the library per month." (ECF No. 17 at 2-3). However, during this time period Cardenas pursued state habeas relief pursuant to Rule 32, filing his petitions in the English language, and Cardenas provides no details or proof as to how these circumstances prevented him from timely filing his federal habeas petition. See Lampert, 465 F.3d at 971-72, citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) ("In the final analysis, however, Mr. Miller has provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims.").
The statute of limitations with regard to the § 2254 petition began to run on April 7, 2018. Cardenas asserts he was in protective custody for six months dating from June 12, 2018, and that during this time his legal materials were "lost." (ECF No. 17 at 5). Cardenas does not explain why he did not protectively file a § 2254 petition prior to being placed in protective custody or after his release from protective custody in December of 2018, prior to the expiration of the statute of limitations in April of 2019. He allows that after being released from protective custody he was "able to interact with other inmates who could help translate for me," and that he was "able to [attain] some of [his] legal materials . . ." (ECF No. 17 at 7).
Accordingly, Cardenas has not established his entitlement to equitable tolling of the statute of limitations. However, in the alternative, Cardenas' claims of ineffective assistance of counsel may be denied based on his failure to properly exhaust the claims in the state courts, and his claim of insufficient evidence may be denied on the merits.
B. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been "properly" exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by "fairly presenting" the claim to the state's "highest" court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In non-capital cases arising in Arizona, the "highest court" test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F. Supp. 2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the "substantial equivalent" of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
A petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim "by any available procedure" in the state courts. 28 U.S.C. § 2254(c). Accordingly, the exhaustion requirement is satisfied if the petitioner is procedurally barred from pursuing a previously un-presented claim in the state's "highest" court. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims bar Cardenas from returning to the state courts to exhaust any unexhausted federal habeas claim, he has exhausted but procedurally defaulted any claim not previously properly presented to the Arizona Court of Appeals. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). "Cause" is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and "prejudice" is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
A petitioner meets the "fundamental miscarriage of justice" exception by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the "fundamental miscarriage of justice" standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
Cardenas does not dispute that he did not present any ineffective assistance of counsel claims to the state's "highest" court, i.e., the Arizona Court of Appeals, in a procedurally correct manner. In reply to Respondents' argument that he failed to properly exhaust his ineffective assistance of counsel claims by fairly presenting them to the Arizona Court of Appeals in his action for state post-conviction relief, Cardenas asserts the same set of circumstances he argues support a finding that he is entitled to equitable tolling of the statute of limitations. He also contends:
In such a short window after my PCR denial, I did not have enough time to have inmates assist me, and translate forms at the maximum security central unit. Thus, as respondent points, my attempt at a motion for leave dated March 26, 2018, made no sense, and was not articulated as it should have been. The motion for leave is in and of itself proof, I desired an appeal, but requested leave to the time constraints imposed by law.(ECF No. 17 at 8). However, Cardenas was transferred to a maximum security prison complex where he was "isolated" in a detention unit in late 2016 or early 2017, and he was then moved to the general population; he continued to file petitions for post-conviction relief, in English and with citations to legal opinions, until August of 2017. Cardenas provides no details or proof as to how these circumstances prevented him from timely filing his federal habeas petition. See Lampert, 465 F.3d at 971-72.
Cardenas had until April 6, 2018, to seek review from the state habeas court's denial of Rule 32 relief. Cardenas was not moved to protective custody until June 12, 2018 and, therefore, the move to protective custody, at which time his legal materials were "lost," does not explain why he was unable to file a petition for review in the Arizona Court of Appeals after March 7, 2018 and before April 7, 2018. On March 25, 2018 Cardenas filed a "notice" in the state trial court, rather than filing a petition for review in the appellate court. (ECF No. 16-3 at 86). In the "notice" he discusses his post-conviction counsel's filing of an Anders brief and asserts his "Sixth Amendment" rights and his rights to due process and equal protection were violated because his counsel was not proficient in Spanish. (ECF No. 16-3 at 87-88).
Cardenas fails to show cause for his failure to properly exhaust his ineffective assistance of counsel claims by presenting them to the state appellate court in a petition for review in his Rule 32 action. A petitioner's status as an inmate, lack of legal or technical knowledge, lack of education, and limited legal resources do not establish cause to excuse a procedural default. See Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988); Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986); Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992). Cardenas' lack of access to Spanish-language legal materials and any purported lack of access to a Spanish-speaking paralegal, or other language assistance, does not constitute cause for his procedural default. See Abdulla v. Ryan, 2016 WL 8813968, at *7 (D. Ariz. Sept. 9, 2016); Urtusuastegui v. Ryan, 2014 WL 3756443, at * 13 (D. Ariz. July 31, 2014) (collecting cases); Hussein v. Ryan, 2009 WL 4043318, at *4 (D. Ariz. Oct. 27, 2009), report and recommendation adopted, No. CV-0801839 DGC, 2010 WL 334566 (Jan. 22, 2010).
Furthermore, prior to the state habeas trial court's decision on the merits, Cardenas had filed a petition for review in his Rule 32 action, which the appellate court denied as premature. This demonstrates Cardenas did know how and when to present a petition for review in the appellate court. Additionally, Cardenas fails to show prejudice arising from his procedural default of his claims because his ineffective assistance of counsel claims are without merit, as explained by the state habeas trial court. (ECF No. 16-4 at 82-83). Nor has Cardenas made a colorable claim of actual, factual innocence such that a fundamental miscarriage of justice will occur absent consideration of the merits of his ineffective assistance of counsel claims.
C. Cardenas' Jackson claim is without merit
Cardenas properly exhausted his claim of insufficiency of the evidence by presenting the claim to the Arizona Court of Appeals in his direct appeal. Pursuant to the AEDPA, the Court may not grant a writ of habeas corpus to a prisoner on a claim adjudicated on the merits in a state court unless the state court's decision denying the claim was "'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it contradicts the governing law established by United States Supreme Court, or if it reached a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). A state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., White v. Woodall, 572 U.S. 415, 419 (2014); Renico v. Lett, 559 U.S. 766, 773 (2010). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. "'A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'" Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016), quoting Harrington, 562 U.S. at 101. See also Dixon v. Ryan, 932 F.3d 789, 801 (9th Cir. 2019), cert. denied, 140 S. Ct. 2810 (2020). "Deciding whether a state court's decision involved an unreasonable application of federal law or was based on an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner's federal claims." Wilson v. Sellers, 138 S. Ct. 1188, 1191-92 (2018).
In denying relief on Cardenas' insufficiency of the evidence claim, the state appellate court concluded:
Defendant next contends that the state failed to meet its burden of proof because the arresting officer did not testify at trial. But because Defendant stipulated to the lawfulness of the arrest, and because one of the other officers who participated in the search testified as to the results of the search, the arresting officer's testimony was not necessary. The testifying officer stated that she personally observed another officer remove the folded dollar bill from Defendant's pocket, and that she herself opened the bill and discovered the methamphetamine. Defendant contends that the officer lied, but her credibility was for the jury to decide. See State v. Cox, 217 Ariz. 353, 357 [] (2007). The state produced sufficient evidence to prove, as required by A.R.S. § 13-3407(A)(1), that Defendant knowingly possessed methamphetamine, a dangerous drug under A.R.S. § 13-3401(6)(c)(xxxviii).Cardenas, 2015 WL 5772216, at *2.
The governing law regarding an insufficiency of the evidence claim is stated in Jackson v. Virginia, 443 U.S. 307 (1979). Pursuant to Jackson and its progeny:
A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was "objectively unreasonable."Cavazos v. Smith, 565 U.S. 1, 2 (2011). Pursuant to the AEDPA and its application in the context of Jackson claims, a federal court may overturn a state court decision rejecting a sufficiency-of-the-evidence challenge only if the state court decision was objectively unreasonable. See id. This "double dose of deference . . . can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). See also Coleman v. Johnson, 566 U.S. 650, 651 (2012) ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.").
In considering an insufficiency of the evidence claim, the federal habeas court must assume that the trier of fact resolved any evidentiary conflicts in favor of the prosecution and must defer to such resolution. Jackson, 443 U.S. at 326. The credibility of witnesses is beyond the Court's review of the sufficiency of the evidence. See Schlup v. Delo, 513 U.S. 298, 330 (1995). Even when the evidence is "almost entirely circumstantial and relatively weak," it may be sufficient to support a conviction. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).
"AEDPA requires a state prisoner to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Burt v. Titlow, 571 U.S. 12, 19-20 (2013) (internal quotations and alterations omitted). A thorough review of the entire record in this matter reveals the state court's finding, that Cardenas' conviction was supported by adequate evidence, was not lacking in justification beyond any possibility for disagreement among fair-minded jurists. Accordingly, the denial of habeas relief on the merits of this claim is also appropriate.
III. Conclusion
Cardenas' federal habeas petition was not timely filed, and he has not established that he is entitled to equitable tolling of the statute of limitations. Additionally, Cardenas' claims of ineffective assistance of counsel were not properly exhausted in the state courts and Cardenas fails to show cause for or prejudice arising from his procedural default of those claims. Cardenas' claim regarding the sufficiency of the evidence may be denied because the state appellate court's denial of this claim for relief was not an unreasonable application of the controlling federal law.
IT IS THEREFORE RECOMMENDED that amended petition seeking a federal writ of habeas corpus at ECF No. 12 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The undersigned recommends that, should the Report and Recommendation be adopted and, should Cardenas seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.
Dated this 7th day of May, 2021.
/s/_________
Camille D. Bibles
United States Magistrate Judge