Opinion
CV-21-00138-PHX-DJH (MTM)
05-02-2022
Michael Marion Cotham, Petitioner, v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION AND ORDER
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA, U.S. DISTRICT JUDGE:
Petitioner has filed a First Amended Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. Doc. 12.
I. SUMMARY OF CONCLUSION
Petitioner was convicted at trial of two counts of child prostitution. The Court recommends the Petition be denied, as Petitioner's properly exhausted claim in Ground One lacks merit and his claims in Grounds Two through Six are procedurally defaulted without excuse or lack merit.
II. BACKGROUND
A. Conviction & Sentencing
The Arizona Court of Appeals summarized the facts as follows:
The Court presumes the Arizona Court of Appeals's summary of the facts is correct. 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995).
Cotham was charged with four counts of child prostitution, each a Class 2 felony. Before trial, the superior court granted several requests by Cotham to
change counsel. Cotham then invoked his right to self-representation through a voluntary, signed waiver of counsel that was accepted by the court after an appropriate colloquy. After various motions and continuances, Cotham made a filing seeking to invoke his speedy trial rights and asking that trial be held within 90 days. This motion was granted and trial was scheduled for October 2013.
On the morning of the first day of trial, the superior court scheduled time for Cotham to meet with his investigator to go over the evidence before jury selection. However, Cotham (who was in custody) failed to appear in court that morning. After learning that Cotham refused transportation despite a warning that his failure to appear could result in revocation of his right to self-representation, the superior court revoked Cotham's right to selfrepresentation. Cotham's advisory counsel was appointed as counsel and granted a two week continuance to prepare for trial.
At trial, the victim, T.G., testified that she met Cotham when she was 17 years old and staying with a friend after running away from a group home. T.G. testified that Cotham and a man known as “Taxi Tom” talked to T.G. about becoming a prostitute for them. T.G. indicated that she was underage and did not want to become a prostitute but Cotham stated “we're going to do it anyway.” According to T.G's testimony, Cotham became controlling and made her feel trapped. T.G. testified to having sex with numerous men while Cotham was prostituting her and stated that Cotham collected the payment, which was either drugs or money.
Police detectives testified that while investigating the matter, they engaged Cotham in conversation and used a fake story to explain their presence at a hotel where Cotham and T.G. were staying. While the detectives and Cotham were talking, T.G. approached Cotham and told him “a date ... was on his way.” At Cotham's suggestion, the detectives returned to the hotel later that night to spend time by the pool. While at the pool, T.G. joined the group and eventually spoke to one of the detectives alone. Based on that conversation, the detectives later returned to the hotel with other officers, including uniformed officers, to make arrests and execute a search warrant.
During [a forensic exam], T.G. indicated that Cotham had sexually assaulted her and had threatened both her and her family. The exam revealed several bruises on T.G. and several swabs were taken from T.G.'s genital area and breasts for DNA analysis. A forensic scientist testified that the DNA profile from one external genital swab was consistent with Cotham and that there was DNA from other unidentified individuals in the samples taken from T.G.
The jury found Cotham guilty on two counts of child prostitution and not guilty on the other two counts.State v. Cotham, No. 1 CA-CR 14-0001, 2015 WL 1228183, at *1-2 (Ariz. App. Mar. 17, 2015). Petitioner was sentenced to consecutive sentences of 21 years' imprisonment. Id.
B. Direct Appeal
Appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Doc. 11-1, Ex. J, at 52-60. Petitioner filed a pro se supplemental brief claiming: (1) the trial court abused its discretion by revoking his pro se status; (2) a Fifth Amendment violation due to presentation of evidence of uncharged offenses; (3) the trial court erred by precluding evidence of the victim's prior sexual acts; (4) a Sixth Amendment violation due to presentation of DNA evidence; (5) the police violated the Fourth Amendment by providing alcohol to a minor to obtain information; (6) a speedy trial violation; (7) the trial court abused its discretion by denying his motion for a new trial; and (8) the trial court abused its discretion by prohibiting the jury from viewing the child prostitution statute. Doc. 12-2 at 1-39.
The Arizona Court of Appeals rejected Petitioner's claims and affirmed his convictions and sentences. Doc. 11-1, Ex. K, at 63-73. On December 1, 2015, the Arizona Supreme Court denied review. Id. at 62; Doc. 11-1, Ex. I, at 50.
C. Post-Conviction Relief
Petitioner filed a notice of PCR on December 18, 2015. Doc. 11-1, Ex. L, at 75-77. Appointed counsel found no colorable claim. Doc. 11-1, Ex. N, at 82. Petitioner filed a pro se PCR petition asserting ineffective assistance of counsel and prosecutorial misconduct. Doc. 12-3 at 18-45. Petitioner claimed trial counsel was ineffective because counsel failed (1) to make an opening statement; (2) to effectively cross-examine witnesses on inconsistencies between their testimony and statements to police; (3) to offer evidence to prove the inconsistencies, including transcripts of the police interviews and phone records; and (4) call witnesses (Norman Potter, Robert “Robbie” Harris, and “Taxi Tom”) to prove the State's witnesses' testimony was false. Id. at 19-38. Petitioner claimed the prosecutor failed to disclose changes in witness testimony and failed to correct false testimony. Id. at 38-41. Petitioner claimed appellate counsel was ineffective because counsel failed to raise the issues Petitioner raised in his pro se supplemental brief in addition to the State's failure to disclose changes in witness testimony. Id. at 41-43. The PCR court denied the petition; it found Petitioner's ineffective-assistance claims meritless and all other claims precluded under Ariz. R. Crim. P. 32.2. Doc. 12-4 at 17-21.
After his PCR petition was denied, Petitioner filed a “Motion for Extension of Time to File Response to the Court's Ruling,” which the PCR court denied. Doc. 11-1, Ex. P, at 87-89; Doc. 11-1, Ex. Q, at 91. In the Arizona Court of Appeals, Petitioner filed a “Motion to Appeal the Decision to Deny the Extension of Time to Respond to the Court's Ruling” (“Motion to Appeal”). Doc. 11-1, Ex. S, at 96-108. Petitioner asserted that the PCR court erred in denying his motion for time to respond and reasserted his claim that the trial court had abused its discretion in terminating his self-representation. Id. at 98-99. The Court of Appeals construed the Motion to Appeal as a Petition for Review of the PCR court's decision denying the PCR petition. Doc. 11-1, Ex. R, at 93. The State responded. Doc. 111, Ex. U, at 114-20. The Court of Appeals granted review but denied relief; the mandate issued on March 5, 2020. Doc. 12-4 at 30-31; Doc. 11-1, Ex. R, at 94.
Petitioner's Motion for an extension of time to properly file a petition for review was denied. Doc. 11-1, Ex. T, at 110-12; Doc. 11-1, Ex. V, at 122. Later, Petitioner filed a “Motion to Respond to State's Response to Petition to Review and Correct Gross Error By [the State]” (“Motion to Respond”). Doc. 11-1, Ex. W, at 124-32. However, it appears that this motion was never ruled on. There is no ruling in the Court of Appeals's docket or in its decision ruling on the petition for review. See Doc. 11-1, Ex. R, at 93-94; Doc. 12-4 at 30-31.
III. PETITION FOR WRIT OF HABEAS CORPUS
Petitioner raises six grounds:
In Ground One, Petitioner alleges that he was denied his Sixth Amendment right to represent himself after the trial court revoked his right to do so.
In Ground Two, Petitioner alleges his Sixth Amendment right to the effective assistance of counsel was violated where trial counsel failed to accurately inform Petitioner of the law in connection with plea negotiations.
In Ground Three, he alleges that trial counsel rendered ineffective assistance in violation of the Sixth Amendment and his Fifth Amendment right to a fair trial.
In Ground Four, Petitioner alleges that the prosecutor knowingly presented perjured testimony in violation of his Fifth Amendment right to a fair trial.
In Ground Five, Petitioner alleges his appellate and PCR counsel were ineffective in violation of the Sixth Amendment and that he “can show ‘cause and prejudice' for any issues that might otherwise be procedurally barred.”
In Ground Six, Petitioner alleges his Fourteenth Amendment right to due process was violated due to “the cumulative effects of all the errors committed in this case.”Doc. 6 at 2; Docs. 12, 12-1. Respondents filed an Answer and Petitioner replied. Docs. 15, 19.
Petitioner initially raised four grounds (Docs. 1, 6), and amended his petition to add Grounds Five and Six. Doc. 12.
IV. LEGAL STANDARDS
A. Standard of Review
To obtain a federal writ of habeas corpus, a petitioner must show the state court's adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.28 U.S.C. § 2254(d). 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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation omitted). The state court's “ruling must be ‘objectively unreasonable, not merely wrong; even clear error will not suffice.'” Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (citation omitted).
B. Requisites for Review
1. Timeliness
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). In general, the limitations period runs from the date the judgment became “final.” 28 U.S.C. § 2244(d)(1)(A). A judgment is “final” when a petitioner can no longer seek review by the Supreme Court. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); see Sup. Ct. R. 13 (requiring petition for a writ of certiorari to be filed within 90 days of entry of judgment by state court of last resort). The statute is tolled during the pendency of a “properly filed application for State post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2).
The Petition is timely. Petitioner's judgment became final on February 29, 2016 (90 days after the Arizona Supreme Court denied review on direct review). His 1-year statute of limitations for filing a federal habeas corpus petition, 28 U.S.C. § 2244(d)(1)(A), was tolled by Petitioner's initiation of his state-court PCR proceeding on December 18, 2015, which concluded on March 5, 2020 (when the Arizona Court of Appeals issued its mandate). See 28 U.S.C. § 2244(d)(2). Accordingly, Petitioner's habeas filing deadline was March 5, 2021. Petitioner timely filed his original petition on January 6, 2021. Doc. 1. The present Petition relates back to the original petition and is therefore timely. See Fed.R.Civ.P. 15(c)(1)(B).
2. Exhaustion of State Remedies
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires the prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). A claim is exhausted when it has been fairly presented to the Arizona Court of Appeals. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 763 (D. Ariz. 2008).
3. Absence of State Procedural Bar
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. A claim is barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, a state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A defendant waives a claim by failing to assert it during the appropriate proceeding except where the claim implicates a “right . . . of sufficient constitutional magnitude to require personal waiver by the defendant,” such as the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
To obtain review of a procedurally defaulted claim, a petitioner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). “‘Cause' . . . must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. “An attorney error does not qualify as ‘cause' to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel.” Davila v. Davis, 137 S.Ct. 2058, 2062 (2017). To establish prejudice, the petitioner must show “actual prejudice,” which “requires the petitioner to establish ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Bradford v. Davis, 923 F.3d 599, 613 (9th Cir. 2019) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986); ellipses in original).
To qualify for the fundamental-miscarriage-of-justice exception, a petitioner must demonstrate actual innocence. Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997). To establish actual innocence, a petitioner must present “new reliable evidence” and “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995); see Jones v. Taylor, 763 F.3d 1242, 1244 (9th Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that in light of new evidence, it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.” (cleaned up)).
C. Ineffective Assistance of Counsel
The Sixth Amendment “‘does not guarantee perfect representation, only a reasonably competent attorney.” Richter, 562 U.S. at 110 (quotation marks and citations omitted). To establish counsel was constitutionally ineffective, a defendant must show (1) counsel's performance “fell below an objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687-90, 694. “The Strickland standard is ‘highly demanding.'” Shinn v. Kayer, 141 S.Ct. 517, 523 (2020) (citation omitted). “A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. The defendant must also show “a substantial, not just conceivable, likelihood of a different result.” Kayer, 141 S.Ct. at 523 (quotation marks and citations omitted). “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693). On habeas review, “[t]he question ‘is not whether . . . the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation omitted); see Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (“[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” (citations omitted)); see also Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Moreover, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123. A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
To establish ineffective assistance of appellate counsel, the petitioner must show: (1) “‘that counsel's performance was objectively unreasonable, which in the appellate context requires the petitioner to demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue'” and (2) “that he was prejudiced on account of the deficient performance, ‘which in this context means that the petitioner must demonstrate a reasonable probability that, but for appellate counsel's failure to raise the issue, the petitioner would have prevailed in his appeal.'” Tamplin v. Muniz, 894 F.3d 1076, 1090 (9th Cir. 2018) (quoting Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010)). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700 (emphasis added).
In general, “an attorney's errors in a postconviction proceeding do not qualify as cause for a default.” Martinez, 566 U.S. at 8 (citing Coleman, 501 U.S. at 753-54). However, a narrow exception to this general rule provides that “ineffective assistance by a prisoner's state postconviction counsel [may qualify] as cause to overcome the default of a single claim-ineffective assistance of trial counsel-in a single context-where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal.” Davila, 137 S.Ct. at 2062-63; see Martinez, 566 U.S. at 15 (“Coleman held that an attorney's negligence in a postconviction proceeding does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial.”). To obtain review of a procedurally defaulted ineffective-assistance-of-trial-counsel claim pursuant to this exception, a petitioner must show: (1) that PCR counsel's failure to raise the claim constituted ineffectiveness under Strickland and (2) that the claim “is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14.
V. ANALYSIS
A. The Arizona Court of Appeals was not unreasonable in failing to find a Sixth Amendment violation in the revocation of Petitioner's self-representation.
Ground One is properly exhausted as it was fairly presented to the Arizona Court of Appeals. See Cooper, 641 F.3d at 326; Doc. 12-2 at 11-14. Petitioner asserts “the trial court unreasonably and unfairly revoked his self-representation status pre-trial” in violation of the Sixth and Fourteenth Amendments. Doc. 12 at 18.
Although Petitioner references the Fourteenth Amendment, the right to self representation is appropriately sourced in the Sixth Amendment. The Court will therefore consider Ground One with reference to applicable Sixth Amendment jurisprudence. Petitioner's claim in Ground One regarding his appointed counsel (Doc. 12 at 18) is addressed with other ineffective assistance claims in Ground Three, Section V(C), infra.
1. Revocation of Petitioner's Self Representation
In April 2013, Petitioner filed a waiver of counsel. Doc. 11-1, Ex. B, at 20. A colloquy with the court established that Petitioner had “knowingly, intelligently, and voluntarily” waived his right to counsel. Doc. 11-1, Ex. C, at 22-24. The trial court granted Petitioner's request to represent himself and appointed advisory counsel and an investigator to assist him. Id. at 23-24.
Petitioner's refusal of transport causes a trial continuance.
Trial began in October 2013, approximately six months after Petitioner had begun representing himself. At trial, prior to jury empanelment, the trial court and Petitioner discussed jury arrangements, including the process for screening up to 200 prospective jurors. Doc. 11-1, Ex. X, at 136, 140-145, 149-52. The court and Petitioner also discussed Petitioner's obligation's in representing himself, including that Petitioner had “to follow certain rules” because “if you don't follow the rules I can deny the right represent yourself.” Id. at 153. The court advised Petitioner:
I could deny your right to represent yourself if you deliberately engage in serious obstructive behavior, including talking out of turn, raising speaking objections.
For example, this is a trial. It is a very formalized process. It may not be something that you normally do in your day-to-day life as the attorneys are trained to do, but you need to follow the same rules.Id. at 153-54.
Regarding appearing at his trial, the court specifically advised Petitioner (who was in custody) that “[i]f you fail to attend the trial or refuse transport - it has happened - and if you decide to do that and absent yourself from this courtroom, you waive your right to represent yourself.” Id. at 157. The court set an 11:00 am start time for trial days, to ensure Petitioner's transport from jail to court would be timely. Petitioner acknowledged his obligation to be ready for transport and to appear in court. Id. at 157-58.
The court's statement was apparently a general observation rather than a reference to a prior refusal of transport by Petitioner, as the record does not indicate that Petitioner had refused transport up to this point in trial.
Petitioner advised the court that he needed to review certain “disks” containing statements from the victim and other witnesses. Id. at 215-16. He asserted that he had not had time to review them with his advisory counsel or his investigator to be “properly prepared” for trial. Id. In response, the trial court delayed jury selection, which was set for the next day, from 10:30 am to 1:30 pm, as Petitioner stated he would “go over” the material with his advisory counsel at that meeting. Id. at 222-23. In addition to delaying jury selection, the court arranged for Petitioner's use of the courtroom, and ordered that the prosecutor and Petitioner's investigator also be present for the requested meeting. Id. at 226-27, 252-53.
Petitioner refused transport the next morning, and missed the meeting. Doc. 11-1, Ex. Y, at 249-50. To ensure Petitioner's presence at 1:30 p.m., the time scheduled for jury selection, the court ordered that he be transported to court “by any means necessary.” Doc. 11-1, Ex. D, at 26 (court order); Doc. 11-1, Ex. X, at 219-23, 241-42 (schedule for jury). Having been brought to court, the following colloquy occurred:
THE COURT: Do you remember me telling you that if you refused transport, failed to appear, that that was something that I could use to decide to no longer represent yourself?
PETITIONER: Yes.
THE COURT: Do you remember me ordering that you would be here at 10:30 this morning to review the information that you said you needed to review?
PETITIONER: Yes, I do.
THE COURT: And you failed to appear this morning, didn't you? Don't explain, just the answer is yes or no.
PETITIONER: Yes, sir.
THE COURT: And my understanding is because you refused to be
transported, even though I entered the order specifically to allow you to prepare for yourself here today.
PETITIONER: Yes, sir.
THE COURT: Go ahead and explain.Doc. 11-1, Ex. Y, at 249-50. Petitioner asserted that he had been unable to get out of bed due to severe back pain when the transport officer came to get him. Id. at 250-51.
THE COURT: Did you tell them that you would not be transported when they came for you this morning?
PETITIONER: Not at all.
THE COURT: Then - so when the deputies tell me that you refused transport, are they lying?
PETITIONER: I was not able to get out of bed this morning.
THE COURT: So you refused to come?
PETITIONER: I couldn't get out of bed until later. So when I finally got up, I let them know, hey, I'm ready to go. So -
THE COURT: Are you telling me that in other mornings, you're not going to be able to get out of bed, too?
PETITIONER: This just happened today. It's the first time I ever missed a court appearance at all.
THE COURT: My problem is it's on the day of trial. Let me finish. It's on the day after I told you if you refused transport, that was going to cost you or could cost you your right because you need to be here to represent yourself. Now, I made special arrangements so that a prosecutor, your attorney, our courtroom, and your investigator would be here with you this morning.
PETITIONER: Uh-huh.
THE COURT: And whatever issue it is you were having with your back, you made a decision not to come here because of it. They didn't refuse to bring you. You refused to come with them. So I'm going to, at this point,
find that you're not participating in this action the way you should, and that you refused your transport, even though I told you that if you refused a transport and failed to appear, that you would lose your right to represent yourself. And so I'm - unless you give me a very good reason in one minute - you have 60 seconds on why I should not, based on what I told you yesterday, lose your right to represent yourself, because I can't have the case just stop. I have 50 jurors downstairs.
PETITIONER: Uh-huh.
THE COURT: I, again, had folks here. My courtroom was made available so that whatever else you needed to do was done, and you took action that prevented that from happening.
PETITIONER: All I can say I was physically unable to get up from my bed to actually walk to do anything physically. I had no medication. I'm not prescribed it anymore. Once it ran out, I have no way of getting to a doctor for them to do a completely correct way. I have documentation that would prove that, too.Id. at 252-54. The trial court rejected Petitioner's explanation:
THE COURT: Well, you don't get to pick when you get up and get transported.
PETITIONER: I understand that, sir.
THE COURT: That is the reality.
PETITIONER: Uh-huh.
THE COURT: And so, no, I'm not going to find that your explanation is merit - has merit at this point.Id. The trial court revoked Petitioner's self-representation and appointed advisory counsel as Petitioner's trial counsel. Id. at 255. As trial counsel was not prepared to go forward with the scheduled trial, trial did not go forward and the court granted trial counsel's request for a continuance. Id. at 255-57.
This Court defers to the trial court's finding that Petitioner's excuse for refusing transport was meritless. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”); Williams v. Grounds, 2015 WL 5579901, at *6 (C.D. Cal. July 31, 2015) (“A state court's factual determinations in connection with a Faretta claim are presumed correct on federal habeas review.”). In his Petition, Petitioner claims he “had a valid medical condition requiring a wheelchair which could have been verified through documentation.” Doc. 12 at 20. However, Petitioner does not provide this Court with any such documentation nor is there any in the state record. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”); Williams, 529 U.S. at 437 (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”). Petitioner also asserts he would have been disciplined if he had in fact refused transport. Doc. 12 at 20. However, an absence of evidence is not clear and convincing evidence.
2. Arizona Court of Appeals
On appeal, Petitioner asserted the trial court denied him “his constitutional right to defend himself.” Doc. 12-2 at 11-14. Rejecting the claim, the Arizona Court of Appeals stated:
“The right to counsel under both the United States and Arizona Constitutions includes an accused's right to proceed without counsel and represent himself,” State v. Lamar, 205 Ariz. 431, 435 ¶ 22, 72 P.3d 831, 835 (2003) (citing cases), “but only so long as the defendant ‘is able and willing to abide by the rules of procedure and courtroom protocol,'” State v. Whalen, 192 Ariz. 103, 106, 961 P.2d 1051, 1054 (App. 1997) (citation omitted). Here, the superior court clearly informed Cotham of his responsibilities and consequences before it revoked Cotham's right to self-representation. The superior court explicitly stated that “[i]f you [Cotham] fail to attend the trial or refuse transport-it has happened-and if you decide to do that and absent yourself from this courtroom, you waive your right to represent yourself. So you need to make sure that you get ready and get here.” The record shows that the next morning, Cotham refused transportation.Cotham, 2015 WL 1228183, at *2 (brackets in original). The Court of Appeals concluded:
Given Cotham's refusal to be transported on the first day of trial, notwithstanding the superior court's clear, unambiguous and timely warnings that Cotham would lose the right to represent himself if he did not follow the court's procedures and refused transport, the superior court did not abuse its discretion in revoking Cotham's right of self-representation. See Whalen, 192 Ariz. at 107-08, 961 P.2d at 1055-56.Cotham, 2015 WL 1228183, at *3.
3. Sixth Amendment Right
The Arizona Court of Appeals decision (Doc. 11-1, Ex. K, at 63-73) is the last reasoned state-court decision, as the Arizona Supreme Court did not provide its reasoning in denying the petition for review. See Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (“When ... the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' we ‘look through' the mute decision and presume the higher court agreed with and adopted the reasons given by the lower court.” (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
In Faretta v. California, the Supreme Court held that a defendant has a Sixth Amendment right to self-representation. 422 U.S. 806, 819 (1975). The Arizona Court of Appeals found that the trial court's revocation of Petitioner's self-representation had not been in violation of the Sixth Amendment because the trial court had not abused its discretion in finding that Petitioner had engaged in serious obstructive behavior in refusing transport for trial. Doc. 11-1, Ex. K, at 64, 66-67. The Court of Appeals decision noted that “[a]fter a delay and the superior court ordering [Petitioner] transported,” the colloquy between the trial court and Petitioner established that Petitioner had failed to follow the court's procedures for trial. Id. at 67-68. As articulated by the Arizona Court of Appeals, Petitioner's Sixth Amendment to self-representation was subject to Petitioner being able and willing to abide by the rules of procedure and courtroom protocol, and was revoked for his failure to comply with those rules. Id.
Petitioner is not entitled to relief on Ground One, because he has not shown that the decision by the Arizona Court of Appeals was an objectively unreasonable application of Supreme Court precedent. See LeBlanc, 137 S.Ct. at 1728.
The Faretta Court specifically referenced that a defendant's right to selfrepresentation is not absolute, as it may be terminated if a defendant deliberately engages in serious and obstructionist misconduct. 422 U.S. at 834 n.46.; see also Martinez v. California, 528 U.S. 152, 162 (2000) (“Even at the trial level, . . . the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.”).
It is beyond question that Petitioner's conduct in refusing transport to attend his trial constituted obstructionist misconduct. Indeed, as referenced by the Court of Appeals, Petitioner was brought to court for his trial only upon the successful intervention by the trial court ordering Petitioner's transport after Petitioner's refusal of transport. In fact, Petitioner's trial did not proceed, as the very meeting Petitioner stated was necessary for him to be prepared-the 10:30 a.m. meeting on the date of jury selection with his advisory counsel and investigator-was cancelled because Petitioner refused transport. Further, the voir dire jury pool the court had arranged for went unused, as advisory counsel became trial counsel and immediately requested and was granted a trial continuance after the court terminated Petitioner's self-representation. Doc. 11-1, Ex. Y, at 252-57.
In asserting that his Sixth Amendment rights were violated, Petitioner argues in essence that his conduct did not rise to the level of serious and obstructionist misconduct, in part because by refusing transport he was not disruptive in court, and that his selfrepresentation was revoked “pre-trial.” Doc. 12 at 18, 21. As a factual matter, Petitioner is incorrect his actions were “pre-trial.” As the Court of Appeals noted, his refusal to be transported occurred “on the first day of trial.” Doc. 11-1, Ex. K, at 67. Petitioner's legal argument, that the Court of Appeals decision was unreasonable because his actions outside the courtroom did not constitute a serious enough disruption of the trial process, fails because the Court of Appeals decision did not contravene clearly established Supreme Court precedent.
As noted above, in both Faretta and Martinez, the Supreme Court specifically found that a defendant's actions-serious and obstructionist misconduct-are a permissible basis to terminate self-representation if those actions seriously impede the trial process. In reviewing the Court of Appeals decision, this Court cannot find that the Court of Appeals was objectively unreasonable in finding that Petitioner's actions justified the termination of his self-representation. In reaching this conclusion, this Court notes that, given the relative paucity of Supreme Court precedent setting forth the contours of “serious and obstructionist misconduct,” Faretta, 422 U.S. at 834 n.46, the Court of Appeals decision did not contravene clearly established Supreme Court precedent. See generally Espinoza v. Lynch, 2021 WL 6275060, at *6 (C.D. Cal. Oct. 29, 2021) (“The Court, however, has provided little guidance concerning the circumstances that justify a decision to deny a defendant's request to represent himself.”); Diesso v. Knowles, 2007 WL 43743, at *10 (E.D. Cal. Jan. 8, 2007) (“Supreme Court precedent on the question of when a disruptive defendant's request to represent himself may be revoked or denied is scarce[.]”). Moreover, the absence of Supreme Court precedent defining the contours of serious and obstructionist misconduct compels the conclusion that habeas relief is not merited, because “‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (citation omitted).
Petitioner's argument that his actions occurred outside the courtroom, and therefore did not disrupt a trial proceeding, fails to establish a Sixth Amendment violation. As the District Court noted in Espinoza:
Although Petitioner faults the trial court for relying on misconduct that occurred outside the courtroom to deny him his right to self-representation, there is no clearly established Supreme Court precedent holding that a trial court is prohibited from considering out-of-court conduct in determining whether to grant a Faretta request.2021 WL 6275060 at *7.
Here, as in Espinoza, there was a sufficient nexus between Petitioner's out-of-court conduct and a serious obstruction of the trial process. Indeed, the Espinoza Court cited as an example of out-of-court obstructionist misconduct in that case, that defendant had “delayed the start of trial on one occasion by refusing to leave his jail cell, claiming that he preferred to ‘sleep in.'” Id. In Petitioner's case, his refusal to leave his jail cell did more than delay an ongoing trial-it caused a continuance and a cancellation of a scheduled trial. Accordingly, in the absence of a clearly established right that a court may not consider out-of-court conduct in terminating self-representation, this Court cannot say that the Court of Appeals unreasonably applied clearly established Federal law in rejecting Petitioner's Sixth Amendment claim. The Court, therefore, recommends Ground One be denied for lack of merit.
4. The Ineffective-Assistance Claim
In Ground Five, Petitioner asserts a related ineffective-assistance claim to establish cause for “any issues that might otherwise be procedurally barred.” Doc. 12-1 at 37. Specifically, Petitioner claims appellate counsel was ineffective for failing “to raise a compelling Faretta claim.” Id.; see also Doc. 19 at 2-12. As discussed above, Petitioner's Faretta claim was without merit. Counsel is not ineffective for failing to raise a meritless claim. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.” (citing Knowles, 556 U.S. at 127 (“The law does not require counsel to raise every available nonfrivolous defense.”))); see also Bean v. Calderon, 163 F.3d 1073, 1082-83 (9th Cir. 1998) (rejecting claim that trial counsel was ineffective for failing to present and investigate a defense theory that lacked support from the record and was in conflict with other evidence); Morrison v. Estelle, 981 F.2d at 425, 429 (9th Cir. 1992) (“Because Morrison's appellate counsel would not have been successful in arguing inadequate notice of a felony-murder charge, Morrison does not sustain his burden of proving [his IAC claim].”). Accordingly, the Court recommends this claim be dismissed for lack of merit. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Medley v. Ryan, No. CV-12-762-PHX-GMS (BSB), 2012 WL 6814246, at *5 (D. Ariz. Dec. 10, 2012) (denying habeas petitioner's “plainly meritless” claim on the merits notwithstanding that it was procedurally barred), adopted by 2013 WL 105269 (D. Ariz. Jan. 9, 2013).
B. Ground Two is procedurally defaulted.
Petitioner claims he would have accepted a plea offer but for trial counsel's alleged ineffectiveness in failing to “timely and properly inform [him] of the law in relation to the facts of the case, as well as of the win-or-lose prospect of trial based on a reasonable assessment of the applicable law, all the evidence, and the conviction rate in comparable cases, prior to the expiration date of the State's plea offer.” Doc. 12 at 26-29. Although Petitioner asserted a number of ineffective-assistance-of-counsel claims in his PCR petition, Ground Two was not among them. See Doc. 12-3 at 18-46. The claim is implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting it in state court now. See Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987. In his Petition and Reply, Petitioner concedes he did not present Ground Two to the Arizona Court of Appeals and does not proffer any explanation for his failure to do so. Doc. 12 at 26; Doc. 19. Accordingly, the Court recommends Ground Two be denied as procedurally defaulted.
C. Ground Three is procedurally defaulted.
Petitioner asserts a number of ineffective-assistance-of-trial-counsel claims. Petitioner claims counsel was ineffective because counsel failed to: (1) “effectively” crossexamine T.G. and Stacy Flynn (Petitioner's co-defendant and girlfriend) on inconsistencies between their testimony and prior statements to police; (2) impeach T.G. and Flynn with evidence of their prior statements, including “police reports and/or video evidence” and a “handwritten note” allegedly authored by T.G. in which she instructed another individual to post an online ad for her; (3) object to alleged prosecutorial misconduct in the form of presentation of “evidence not contained within the discovery”; (4) move for a mistrial due to the State's presentation of allegedly false testimony; and (5) present exculpatory witnesses to discredit T.G. and Flynn. Doc. 12 at 30-49; Doc. 12-1 at 1-25.
As discussed in Section II, supra, Petitioner raised a number of these claims in his PCR petition. See Doc. 12-3 at 18-45. However, he did not present any of them in his Petition for Review before the Arizona Court of Appeals. See Doc. 11-1, Ex. S, at 96-100.In his Petition for Review, Petitioner merely asserted that the PCR court had erred in denying his motion for more time to respond to the PCR court's ruling and reasserted his claim that the trial court abused its discretion in terminating his self-representation. Id. Therefore, Ground Three is unexhausted. See Swoopes, 196 F.3d at 1010. And because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from returning now to state court to properly exhaust the claims in Ground Three, it is procedurally defaulted. See Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987.
As discussed in Section II(C), supra, Petitioner did not file a formal petition for review; the Arizona Court of Appeals deemed his Motion to Appeal his Petition for Review. See Doc. 11-1, Ex. R, at 93.
The issue of whether claims in Ground Three were exhausted by their inclusion in the Motion to Respond is an issue of fair presentation, not construction. While “a claim is exhausted if the State's highest court expressly addresses the claim, whether or not it was fairly presented,” Casey v. Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004), that exception to fair presentation is inapplicable here because the Arizona Court of Appeals did not expressly address any claim in ruling on Petitioner's Petition for Review, much less any claim raised in the Motion to Respond. See Doc. 12-4 at 30-31. “A petitioner fairly and fully presents a claim to the state court . . . if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted); see also Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding a claim raised “for the first and only time in a procedural context in which its merits will not be considered in the absence of “special and important reasons” for doing so is not fairly presented (citation omitted)). As courts in this District have observed, “Arizona follows the prevailing practice that claims not raised in an opening brief are waived, and cannot be raised for the first time in a reply brief.” Callan v. Ryan, 2018 WL 3543918, CV-17-8077-PHX-DGC (JFM), 2018 WL 3543918, at *15 (D. Ariz. May 17, 2018) (concluding petitioner's presentation of claim in reply brief did not constitute “fair presentation”), adopted by 2018 WL 3536729 (D. Ariz. July 23, 2018); see Curtis v. Ryan, No. CV-19-04374-PHX-DGC (JZB), 2021 WL 4483174, at *7 (D. Ariz. June 25, 2021) (“In order for a claim to be ruled on by the Arizona Court of Appeals - and therefore exhausted for purposes of habeas review - a petitioner must have raised the claim in an opening brief; arguments raised thereafter, e.g., in a reply brief, are waived and therefore unexhausted.”), adopted by 2021 WL 4596465 (D. Ariz. Oct. 6, 2021). Thus, the Motion to Respond, which was essentially a motion for leave to file a reply to the State's response to the Petition for Review, was not a “proper vehicle,” even if it had been granted, for Petitioner to present his claims; the proper vehicle for purposes of fair presentation was the Petition for Review. See State v. Fernandez, 2007 WL 5582235, at *2 (Ariz. App. Oct. 31, 2007); see also Baldwin, 541 U.S. at 32 (“[A] state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.”).
This is evident by its full title: “Motion to Respond to States [ sic ] Response to Petition to Review and Correct Gross Error By [the State].” Doc. 11-1, Ex. W, at 124.
As discussed in n.2, supra, it does not appear that the Motion to Respond was ever ruled on.
Therefore, because none of the claims in Ground Three were fairly presented to, or expressly addressed by, the Arizona Court of Appeals, Ground Three is unexhausted. See Swoopes, 196 F.3d at 1010. Ground Three is implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from now returning to state court to properly exhaust the claims therein. See Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987.
Petitioner fails to show cause and prejudice to excuse the default or a fundamental miscarriage ofjustice. In his reply, Petitioner reasserts that his claims are meritorious. See Doc. 19 at 12-34. Later in the Reply and in Ground Five, Petitioner asserts he qualifies for the Martinez exception. Doc. 12-1 at 37; Doc. 19 at 62; see Martinez, 566 U.S. at 15 (“Coleman held that an attorney's negligence in a postconviction proceeding does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial.”). However, Petitioner fails to demonstrate, much less proffer any argument specific to, PCR counsel's alleged ineffectiveness under Strickland with respect to any specific claim in Ground Three. Generalized assertions are insufficient. See Reed v. Stephens, 739 F.3d 753, 781 n.20 (9th Cir. 2014) (“We decline [petitioner's] suggestion that his procedurally defaulted claims may be considered under Martinez. [Petitioner] has insufficiently briefed this issue, and we consider this argument waived.”); Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (“Jones's conclusory suggestions that his trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation.”); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). Further, as explained below, Petitioner fails to show that the ineffective-assistance-of-counsel claims in Ground Three that PCR counsel was allegedly ineffective for failing to raise were “substantial,” i.e., had “some merit.” Martinez, 566 U.S. at 14. And even if counsel's performance was deficient, Petitioner must also show “a substantial, not just conceivable, likelihood of a different result.” Kayer, 141 S.Ct. at 523 (quotation marks and citations omitted). “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).
Petitioner fails to demonstrate “some merit” under Martinez to his claim that trial counsel was ineffective for not objecting to the State's presentation of T.G. and Stacy Flynn's allegedly false testimony because Petitioner fails to show any misconduct by the State on this basis. Petitioner must show: “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Petitioner claims T.G.'s testimony did not “reflect the facts she related to police during her initial interview, nor [did] it align with real facts known to [Petitioner] and to [other witnesses].” Doc. 12 at 30-31. Petitioner claims the prosecutor used leading questions which “were not objected to” by his counsel and which “prompted T.G. to substantially change the story she [had initially] told police.” Id. at 32. T.G.'s allegedly false testimony concerned: when and how she met Petitioner and Robert Harris (a friend of Petitioner's whom she lived with for a time), when she had first arrived at the Extended Stay (the hotel where the charged conduct occurred) and who brought her there, and where she was residing around the time it occurred (with Robbie or with Petitioner). Id. at 31-47; see also Doc. 12-1 at 3 (“T.G. trial testimony is highly inconsistent with her statements to the police as to: 1) how she met Robbie? 2) where was she living? 3) the day she left Mr. Robert (Robbie) Harris's home and went to the Extended Stay Hotel for the first time.”). Petitioner claims T.G.'s testimony with respect to these issues was false because it was inconsistent with her own prior statements to police and statements made by other witnesses, including Robert Harris. See Doc. 12 at 38 (“These statements are disproved through Mr. Harris' (Robbie's) statements to police and T.G.'s own previous statements.”), 46 (“Despite a major hole in T.G.'s testimony regarding the dates and her statement that she was unsure about the dates, and these dates could not be rehabilitated by the prosecutor, defense counsel failed to recognize 1) the indicted dates were for the 13th and 14th of May; and 2) T.G. had just admitted she was unsure as to when the alleged acts occurred.”). However, mere inconsistencies between T.G.'s prior statements and trial testimony are insufficient to demonstrate her testimony was false. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false.”).
In addition to failing to show that the trial testimony was false, Petitioner also fails to demonstrate the materiality of the testimony in question, i.e., a “reasonable likelihood that [this] testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). The indictment itself did not provide an exact date for when the offenses allegedly occurred. See Doc. 12-4 at 41. The conduct forming the basis of Count 4 was alleged to have occurred “on or about” May 13, 2012; the conduct forming the basis of Count 6 was alleged to have occurred “on or about” May 14, 2012. Id. (emphasis added). The allegedly false testimony had little to no bearing on the narrow issue of whether or not Petitioner prostituted T.G. as charged in the indictment and, therefore, Petitioner fails to show that the presentation of this testimony had any “reasonable” likelihood that it affected the jury's decision to convict him. See Agurs, 427 U.S. at 103.
Despite Petitioner's assertion to the contrary, his counsel did in fact move for acquittal based on alleged insufficiency of the evidence. See Doc. 11-1, Ex. GG, at 1276.
As to Flynn, Petitioner asserts that Flynn admitted to one of the charged acts in her statement to police; however, the same report also documents that T.G. herself also admitted to that same act. See Doc. 12 at 47; Doc. 12-4 at 49 (Flynn's interview: “Stacy said that Mike told her today to give a guy a blow job for a ride to CVS. This is the same story that [T.G.] said that she said.”); Doc. 12-5 at 4 (T.G.'s interview: “[T.G.] gave a guy head so that [Petitioner] could get a ride to buy cigarettes.”). Again, inconsistencies do not demonstrate falsity. See Croft, 124 F.3d at 1119.
Petitioner fails to demonstrate “some merit” under Martinez to his claim that trial counsel was ineffective for not effectively cross-examining and impeaching T.G. and Flynn regarding inconsistencies between their testimony and prior statements to police and Detective Kenney about other residents at the hotel and the complainant's statements as to whether T.G. was staying at Robert Harris's house during the relevant time. Doc. 12-1 at 6-21. To the contrary, trial counsel demonstrated reasonable competence in his crossexamination of these witnesses, asking appropriate questions and confirming dates as necessary. Doc. 11-1, Ex. DD, at 928-52 (cross-examination of Flynn); Doc. 11-1, Ex. EE, at 1069-98 (cross-examination of T.G.); Doc. 11-1, Ex. GG. at 1247-64 (crossexamination of Detective Kenney). Further, counsel was not ineffective for failing to attempt to offer the police reports in evidence to impeach their testimony because the police reports did not contain exculpatory information and were more damaging to Petitioner's case than helpful. Flynn disclosed in her interview that she made money prostituting for Petitioner. Doc. 12-4 at 47-50. In T.G.'s interviews, she admitted to having sex with individuals at the behest of Petitioner. Doc. 12-5 at 2-6 (initial interview, 5/16/2012); Doc. 12-5 at 12-13 (interview, 5/18/2012). Other police reports note T.G.'s statement that she made money for Petitioner. Doc. 12-3 at 17.
Petitioner fails to demonstrate “some merit” under Martinez to his claim that trial counsel was ineffective for failing to interview or call Norman Potter (who allegedly drove T.G. to the Extended Stay) and Robert Harris as witnesses to dispute T.G.'s timeline of the events. Doc. 12 at 47-50; Doc. 12-1 at 1-5. Indeed, Petitioner, while proceeding pro se, had disclosed Potter and Harris as potential witnesses. Doc. 12-6 at 15. Petitioner's investigator spoke to Potter on August 5, 2013. Doc. 12-6 at 31. However, at the scheduled trial on October 8, 2013, the parties discussed the difficulties in contacting Potter. Doc. 111, Ex. Y, at 234-5. As to Harris, in May 2012, Harris received a letter from Petitioner in which Petitioner asked for his phone number. Doc. 12-5 at 17. However, when the investigator reached out to Harris on September 9, 2013, Harris stated he would not grant Petitioner an interview and believed Petitioner was “guilty.” Doc. 12-6 at 30-31.
Petitioner fails to show a fundamental of miscarriage of justice as he fails to show no reasonable juror would have convicted him. See Jones, 763 F.3d at 1244. Indeed, material attached to his Petition actually supports rather than diminishes Petitioner's guilt. See Doc. 12-4 at 36 (Index of Exhibits). For instance, a police report states that when undercover detectives asked T.G., “Well, you're making all the money for Michael right,” T.G. responded, “Yes.” Doc. 12-3 at 17. The complainant who suspected T.G. was underage and reported his suspicion to police-and who was also a customer of Petitioner's prostitution enterprise-provided detectives with text messages between him and Petitioner in which Petitioner sent a picture of T.G. and stated the prices for various sexual acts to be performed by her. Doc. 12-4 at 43.
Accordingly, the Court recommends Ground Three be dismissed as procedurally defaulted without excuse.
D. Ground Four is procedurally defaulted.
Petitioner asserts a Napue claim alleging he was denied a fair trial because the prosecutor “knowingly presented perjured testimony.” Doc. 12-1 at 26-36. Petitioner did not raise this claim on appeal. See Doc. 12-2 at 1-39. Petitioner raised it in his PCR petition but the PCR court determined it was precluded under Ariz. R. Crim. P. 32.2. Doc. 12-3 at 38-40; Doc. 12-4 at 18. The Arizona Court of Appeals found no abuse of discretion in that determination. Doc. 12-2 at 31. The claim is therefore expressly procedurally defaulted. See Hurles, 752 F.3d at 780.
See generally Napue v. Illinois, 360 U.S. 264, 269 (1959) (“[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.”).
Petitioner fails to show cause for the default or a fundamental miscarriage of justice. In Ground Five, Petitioner alleges his appellate and PCR counsel were ineffective and “factual and procedural circumstances prevented” him from raising Ground Four “until the postconviction stage.” Doc. 12-1 at 37, 39. Petitioner, therefore, argues that “the reasoning applied in Martinez would extend to [Ground Four].” Id. at 38. Petitioner fails to set forth any specific allegations in Ground Five to support a claim that appellate and PCR counsel rendered ineffective assistance with respect to Ground Four; therefore, his claim fails at the outset. See Reed, 739 F.3d at 781 n.20 (“We decline [petitioner's] suggestion that his procedurally defaulted claims may be considered under Martinez. [Petitioner] has insufficiently briefed this issue, and we consider this argument waived.”); Jones, 66 F.3d at 205 (“Jones's conclusory suggestions that his trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation.”); James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
In addition, Petitioner's assertion that Ground Four “needed further factual development in the trial court,” Doc. 12-1 at 38 (emphasis added), undercuts any claim that appellate counsel was ineffective for failing to raise it; counsel is not ineffective for failing to raise an undeveloped claim. See Sexton, 679 F.3d at 1157 (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.” (citing Knowles, 556 U.S. at 127 (“The law does not require counsel to raise every available nonfrivolous defense.”))); see also Bean, 163 F.3d at 1082-83; Morrison, 981 F.2d at 429. Finally, with respect to PCR counsel, Petitioner's claim fails as a matter of law. The Supreme Court has made clear that the exception announced in Martinez that allows ineffective assistance of PCR counsel to qualify as cause for a procedural default is limited to procedurally defaulted claims of ineffective assistance of trial counsel. Davila, 137 S.Ct. at 2062-63 (“In [Martinez], this Court announced a narrow exception to Coleman's general rule. That exception treats ineffective assistance by a prisoner's state postconviction counsel as cause to overcome the default of a single claim-ineffective assistance of trial counsel-in a single context-where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal.”). No Supreme Court opinion has extended the Martinez exception beyond this narrowly-defined context.
In his Reply, Petitioner disputes the PCR court's finding of preclusion, arguing it did not “expressly state” that Ground Four was precluded, only that “‘most' of [his] claims were precluded, without specifically identifying which ones.” Doc. 19 at 36. This argument is unavailing. The PCR court organized the analysis underlying its ruling into three sections: “1. Most Claims Precluded.”; “2. No Ineffective Assistance of Trial Counsel.”; and “3. No Ineffective Assistance of Appellate Counsel.” Doc. 12-4 at 19-20. Because Ground Four was neither a claim of ineffective assistance of trial counsel nor a claim of ineffective assistance of appellate counsel, it could only fall into the first bucket of claims-those which were precluded. The absence of an express and direct reference to the claim does not mean that it was not ruled on. See Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”). Petitioner fails to otherwise excuse the procedural default of Ground Four.
Accordingly, the Court recommends Ground Four be dismissed as procedurally defaulted without excuse.
E. Ground Five is without merit.
Petitioner claims his appellate counsel and PCR counsel were ineffective. Doc. 121 at 37. Petitioner asserts his appellate counsel was ineffective for failing “raise a compelling Faretta claim on appeal.” Id. The Court previously addressed this claim in its analysis of Ground One and found it meritless. See Section V(A)(4), supra. Petitioner further asserts his appellate counsel and PCR counsel were ineffective for failing to raise Ground Four. The Court previously addressed this claim in its analysis of Ground Four and concluded it failed as a matter of law. See Section V(D), supra. Although Petitioner broadly asserts in Ground Five that he can establish cause to excuse the default of “any issues that might otherwise be procedurally defaulted,” Doc. 12-1 at 37 (emphasis added), Petitioner proffers no further argument in Ground Five specific to any procedurally defaulted claim; a general conclusion of law unaccompanied by a specific statement of facts in support of it is insufficient. See Reed, 739 F.3d at 781 n.20; Jones, 66 F.3d at 205; James, 24 F.3d at 26. Accordingly, the Court recommends Ground Five be dismissed for lack of merit. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
F. Ground Six is procedurally defaulted.
In Ground Six, Petitioner claims Fourteenth Amendment due process was violated due to “the cumulative effect of all the errors committed in this case.” Doc. 12-1 at 40. Petitioner did not raise this claim on direct review or PCR review. See Doc. 12-2 at 1-39; Doc. 12-3 at 18-46. The claim is procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting it in state court now. See Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987; see also Wooten v. Kirkland, 540 F.3d 1019, 1025-26 (9th Cir. 2008) (stating a claim of cumulative error must be properly exhausted just as any other constitutional claim).
A claim of cumulative error is cognizable on habeas review. See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (“The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair.” (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03 (1973)).
Petitioner does not show cause for the default or a fundamental miscarriage of justice. In his Petition, Petitioner concedes he did not present Ground Six to the Arizona Court of Appeals. Doc. 12-1 at 40. As cause, Petitioner states: “Both direct appeal counsel and PCR counsel withdrew from my case and left me without legal assistance or access to a law library in order to know the law in the state court proceedings.” Id. The Court finds no merit to this assertion. In his pro se appellate brief, Petitioner cited at least: five (5) state-court cases, sixteen (16) United States Supreme Court cases, eight (8) Circuit Court cases, and various Arizona rules and statutes. See Doc. 12-2 at 4-6. Petitioner's claims, though ultimately denied, were nonetheless well-reasoned and well-supported by applicable law. Petitioner therefore fails to establish cause on this basis.
Petitioner further asserts his default is excused due to ineffective assistance of appellate and PCR counsel. Doc. 12-1 at 40; see also Doc. 19 at 47-48. However, Petitioner fails to allege any facts in Ground Six or his reply to support this claim, resting only on this bare conclusion of law, which is insufficient. See Reed, 739 F.3d at 781 n.20; Jones, 66 F.3d at 205; James, 24 F.3d at 26.
Accordingly, the Court recommends Ground Six be dismissed as procedurally defaulted without excuse.
VI. MOTION FOR DISCOVERY AND EVIDENTIARY HEARING
Petitioner requests production of “the physical video disks of the recorded interview conducted by the police and later disclosed by the State, prior to trial,” as well as transcripts of those interviews, alleging “they contain relevant information related to grounds 2 and 4 of this petition.” Doc. 18 at 1-2. Petitioner also requests an evidentiary hearing “because the PCR court made what appears to be a merits determination without conducting an evidentiary hearing . . . in violation of ARS 13-4236 and 13-4238,” which, Petitioner argues, renders its merits ruling “objectively unreasonable” under 28 U.S.C. § 2254(d)(2). Id. at 2. Finally, Petitioner “submits that he can prove by clear and convincing evidence that no reasonable fact finder would have found him guilty of the underlying offense.” Id. Respondents responded. Doc. 20. Petitioner replied. Doc. 21.
The Court denies the motion. Further discovery and an evidentiary are not necessary as the Petition can be resolved by reference to the record before the Court. See Clark v. Chappell, 936 F.3d 944, 967 (9th Cir. 2019) (“An evidentiary hearing is not required on allegations that are conclusory and wholly devoid of specifics or on issues that can be resolved by reference to the state court record.” (cleaned up)). Moreover, as discussed in Section V(C), supra, Petitioner fails to demonstrate actual innocence and the evidence he has presented to the Court with his Petition actually supports his convictions. The Court, therefore, finds no good cause to permit additional discovery requested. See Rule 6(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254 (“A judge may, for good cause, authorize a party to conduct discovery . . . .”).
Petitioner also asserts in Ground Five that he is “entitled to an evidentiary hearing in this court in order to determine the extent of his efforts to bring any defaulted claims to his attorneys' attention by way of handwritten notes, correspondence, and/or verbal communication so that he may establish ‘cause' and that this court need only decide if the underlying IAC claims have at least some merit in order for him to establish ‘prejudice.'” Doc. 12-1 at 37-38. “For procedurally defaulted claims, to which Martinez is applicable, the district court should allow discovery and hold an evidentiary hearing where appropriate to determine whether there was ‘cause' under Martinez for the state-court procedural default and to determine, if the default is excused, whether there has been trial-counsel IAC.” Detrich v. Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013). For the reasons discussed above and in Section V(C), supra, the Court finds no good cause to hold the hearing described above and denies Petitioner's request for one.
VII. CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Proceedings, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner has not made the requisite showing here, the Court recommends that a certificate of appealability be denied.
VIII. CONCLUSION
IT IS ORDERED Petitioner's motion for discovery and an evidentiary hearing (Doc. 18) is denied without prejudice.
IT IS RECOMMENDED the Petition (Doc. 12) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED a certificate of appealability 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 Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.