Opinion
CV-21-01414-PHX-JJT (DMF)
03-03-2022
Juan Alberto Cruz, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 7 at 4) Petitioner Juan Alberto Cruz (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on August 11, 2021. (Doc. 1) On September 17, 2021, the Court ordered Respondents to answer to the Petition. (Doc. 7 at 3) Respondents filed their Answer to the Petition on October 27, 2021 (Doc. 14), and Petitioner subsequently filed his Reply on January 26, 2022 (Doc. 18).
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-21-01414-PHX-JjT (DMF).
The Petition was docketed by the Clerk of Court on August 16, 2021 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on August 11, 2021 (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used August 11, 2021, as the filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
For the reasons set forth below, it is recommended that the Petition be denied and dismissed with prejudice and that a certificate of appealability be denied.
I. BACKGROUND
A. Events Resulting in Charges Against Petitioner
In its memorandum decision on Petitioner's direct appeal, the Arizona Court of Appeals summarized the events leading to the charges, convictions, and sentences on which Petitioner's habeas claims are based:
Viewed in the light most favorable to sustaining the verdicts, see State v.Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), the evidence established that B.P., a correctional officer for the Arizona Department of Corrections (ADOC), was escorting [Petitioner], a prison inmate, from the shower to his cell, when [Petitioner], using a hand-made key, freed his hands from handcuffs that B.P. had placed on him, turned on B.P. and struck him, first in the face shield he was wearing and then in the jaw; the two wrestled until other officers arrived to assist B.P. The evidence also established that while B.P. was walking with him, [Petitioner] had dropped an object and kicked it; an officer saw on the floor near [Petitioner] 's leg, and then picked up, an eight-inch prison-made “shank”-a pen tube with a sharpened metal point fashioned to serve as a weapon. The officer found additional items used to make the shank in [Petitioner]'s cell.(Doc. 14-1 at 4)
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763, n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
B. Petitioner's Convictions and Sentences
The Arizona Court of Appeals further explained that:
[following a jury trial, [Petitioner] was convicted of aggravated assault and promoting prison contraband. After [Petitioner] admitted three prior felony convictions, the trial court found two historical priors and sentenced him to concurrent, presumptive but enhanced prison terms of five and 15.75 years, to be served consecutively to the prison term he was serving for another conviction.(Doc. 14-1 at 4) Petitioner's sentencing hearing was conducted by the superior court on March 15, 2016. (Id. at 17-21)
C. Direct Appeal and Post-Conviction Relief (“PCR”) Actions
1. Petitioner's direct appeal
Petitioner's trial counsel filed a notice of appeal of Petitioner's judgment and sentence on March 16, 2016. (Doc. 14-1 at 24-26) In July 2016, appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and advised the superior court that counsel was unable to identify any arguable question of law to assert on Petitioner's behalf on appeal. (Id. at 28-41) Petitioner filed a pro per supplemental brief in January 2017. (Id. at 44-65) Petitioner asserted a number of issues, including: that his indictment was not properly endorsed; the element of mental state was missing from the aggravated assault charge of his indictment; his warrant was unlawfully acquired; he was denied the constitutional right to speedy arraignment, appointment of counsel, and trial on both counts; his due process rights were denied when he was not timely advised of the indictment; his due process rights were violated when the prosecution amended the date of offense of Count 2 at trial; he was repeatedly denied his right to appear in court; he was denied a fair trial when the state purposefully destroyed records identifying potential prisoner witnesses; jury selection was unconstitutional because the jury included no Hispanic jurors; a prosecution witness improperly testified regarding Petitioner's intent; a prosecution witness gave false testimony; and the trial court erred by holding that Petitioner was not entitled to presentence credit. (Id. at 54-64) Petitioner also appeared to assert numerous claims of ineffective assistance of trial counsel. (Id.)
In its memorandum decision filed on May 3, 2017, the Arizona Court of Appeals declined to address any claims of ineffective assistance of counsel (“IAC”) because such claims may only be raised in post-conviction relief proceedings. (Id. at 5) The court further held that: the evidence at trial was sufficient to support the jury's convictions on the counts; nothing in the record permitted a conclusion that Hispanics “were systematically excluded from the jury panel[;] Petitioner had waived claims of defects in the indictment and associated issues and such claims also failed on the merits; Petitioner's claims to his speedy trial rights were waived and lacked merit; Petitioner's claim he was denied the right to be present at court was not supported; Petitioner's claims that the prosecution was permitted to introduce improper evidence or had withheld exculpatory evidence lacked support and could not be seen as error that was fundamental and prejudicial; under state law, Petitioner was not entitled to presentence incarceration credit; and Petitioner's other claims were conclusory and without merit. (Id. at 5-8)
Petitioner filed a petition for review by the Arizona Supreme Court (Doc. 14-2 at 317), which that court summarily denied (Id. at 29).
2. Petitioner's Post-Conviction Relief (“PCR”) action
Petitioner timely filed a notice of post-conviction relief (“PCR”) in the superior court in December 2017. (Doc. 14-2 at 31-33) In September 2018, appointed counsel filed a notice in the superior court advising the court that she had reviewed the record and was not able to identify any colorable claims to assert pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Id. at 38-41) Petitioner mailed his pro per PCR petition to the superior court on February 28, 2019. (Id. at 43-97)
Petitioner asserted claims alleging prosecutorial misconduct and IAC by both his trial counsel and counsel on direct appeal. (Id. at 43-70) Petitioner's prosecutorial misconduct claim was that in closing argument the prosecution told the jury that “we don't know what happened to the [Petitioner] in prison” when addressing whether Petitioner had been disciplined for the shank, and that the prosecutor had been aware that Petitioner's prison discipline report had mentioned a shank. (Id. at 51-53) Petitioner believed the statement could have affected his conviction on the charge of promoting prison contraband. (Id.) Petitioner's claim of IAC by counsel on direct appeal was that counsel failed to raise Petitioner's claim of prosecutorial misconduct. (Id. at 54-55)
Petitioner argued several claims of IAC by his trial counsel, including the failure to: move to suppress evidence relating to the shank, handcuff key, and pen components the corrections officers had located (Id. at 55-60); move for disclosure of exculpatory Brady materials, such as a video filmed after the incident by Corrections Officer Acosta (Id. at 60-62); object to testimony by the prosecution's witnesses that Petitioner argued would have permitted the jury to conclude that Petitioner was a gang member (Id. at 62-65); object to the selection of an all-white jury with no Hispanic members (Id. at 65-66); present any defense of Petitioner, such as putting on defense witnesses (Id. at 66-68); and object to the prosecutor's misconduct/perjury in closing argument (Id. at 68-69). Petitioner further alleged that his trial counsel was ineffective at Petitioner's sentencing by not challenging the superior court's decision to refuse Petitioner credit for time served. (Id. at 69-70) Additionally, Petitioner contended that the cumulative effect of the alleged prosecutorial misconduct and all claims of IAC entitled him to relief. (Id. at 70)
After the state filed a response (Id. at 99-112) and Petitioner filed a reply (Id. at 114124), the superior court issued a summary order finding that “all matters contained in the Petition for Post-Conviction Relief are precluded as having been previously ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings[.]” (Id. at 126) In his petition for review by the Arizona Court of Appeals, Petitioner argued that the superior court had abused its discretion by denying relief on Petitioner's claims of prosecutorial misconduct (Doc. 14-3 at 10-12), as well as IAC by counsel on direct appeal for not asserting the issue of prosecutorial misconduct (Id. at 12-14). Petitioner further asserted IAC by his trial counsel for failure to: move to suppress evidence of prison contraband; object to the testimony of a prison gang expert; present any defense, in particular evidence that a correction officer had filmed a video of the incident; or challenge the superior court's finding that Petitioner was ineligible for credit for time served. (Id. at 14-23) Petitioner also contended that the superior court had abused its discretion for holding that Petitioner's IAC claims had been precluded ‘“as having been previously ruled upon.'” (Id. at 21 (quoting Doc. 14-2 at 126))
On April 3, 2020, the Arizona Court of Appeals filed a memorandum decision granting review and denying relief on Petitioner's PCR petition. (Id. at 76-80) The court of appeals held that Petitioner had not met his burden of demonstrating the superior court had abused its discretion when it denied his PCR petition. (Id.) Regarding Petitioner's claim of prosecutorial misconduct, the court of appeals held the claim was precluded because it was not raised on appeal, citing Ariz. R. Crim. P. 32.2(a)(3). (Id. at 78) The court of appeals further held that even if the claim were not precluded, it could not qualify as fundamental error warranting relief because Petitioner's disciplinary records had not been admitted at trial and that the prosecutor's statement during closing argument was accurate in light of the record at trial. (Id.)
The court of appeals concluded that Petitioner had failed to establish that his trial counsel's decision not to file a motion to suppress evidence relating the discovery of a shank fell below reasonable standards. (Id. at 79) The court stated that Petitioner's right to move for suppression of illegally seized evidence did not obtain when corrections officers violated prison regulations, but instead would arise when Petitioner's constitutional right to be free from unreasonable search and seizure was violated. (Id.) The court of appeals additionally held that Petitioner did not establish that his trial counsel provided IAC by failing to object to the testimony of prosecution's expert witness on prison gangs. (Id. at 79-80) The court concluded that Petitioner's mere conclusory assertion that his trial counsel had erred, without supporting the allegation with evidence, was not sufficient to establish that counsel's conduct fell below standards of reasonableness. (Id.)
The court of appeals further held that Petitioner had failed to show that his trial counsel was ineffective for not presenting a defense. (Id. at 80) The court stated that Petitioner offered only speculation that an alleged exculpatory video and exculpatory testimony and reports could have been admissible and useful to the defense. (Id.) The court further noted that the record established that defense counsel had challenged a number of jury instructions, cross-examined the state's witnesses, and “presented a closing argument detailing the weaknesses in the state's case.” (Id.) The court declared that the record did not indicate that counsel had failed to properly prepare the defense case. (Id.)
Addressing Petitioner's claim of IAC by trial counsel for not requesting that Petitioner be given credit for presentence incarceration, the court of appeals emphasized that it had explained in its decision on direct appeal that Petitioner was not eligible for such credit for the period between issuance of the indictment and sentencing on the charges because Petitioner was already imprisoned on a different offense during that period. (Id.)
Petitioner timely filed a petition for review in the Arizona Supreme Court (Id. at 8294) and the court denied review without comment (Id. at 106).
D. Petitioner's Habeas Claims
Petitioner asserts seven grounds for relief in the Petition. In Ground 1, Petitioner alleges his trial counsel was ineffective for not moving to suppress evidence relating to the shank, handcuffs key, and pen parts. (Doc. 1 at 6, 17) Petitioner's Ground 2 claim is that trial counsel was ineffective for not filing a motion challenging the prosecution's failure to disclose a video recording allegedly documenting Petitioner's restraint. (Id. at 7) Petitioner argues in Ground 3 that his trial counsel provided IAC by failing to present any defense. (Id. at 8) Petitioner's Ground 4 claim is that his trial counsel was ineffective for failing to object to the prosecutor's statement in closing argument regarding whether Petitioner had been disciplined for the shank, that “we don't know what happened to the [Petitioner] in prison.” (Id. at 9) In Ground 5, Petitioner contends his trial counsel's representation was constitutionally ineffective for failing to object to testimony by the prosecution's witnesses that Petitioner believes could have allowed the jury to infer that he was a prison gang member. (Id. at 19) Petitioner's Ground 6 claim is that his trial counsel was ineffective for not objecting to the selection of an all-white jury when Petitioner is Hispanic. (Id. at 21) In Ground 7, Petitioner asserts fundamental error when the prosecutor knowingly committed misconduct by making the statement in closing argument that “we don't know what happened to the [Petitioner] in prison.” (Id. at 22)
Petitioner asserts sub-claims within Grounds 3 and 5, which are identified in Section III(A)(1) and (3), infra.
II. LEGAL FRAMEWORK OF PROCEDURAL DEFAULT AND INEFFECTIVE ASSISTANCE OF COUNSEL
A. Exhaustion and Procedural Default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O 'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856,
(2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n. 10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n. 10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court 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.” Coleman, 501 U.S. at 735 n. 1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020, and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 postconviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies.
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘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.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Leev. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v.Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
B. Ineffective Assistance of Counsel (“IAC”)
Under clearly established federal law on IAC, a petitioner must show that his counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Stricklandv. Washington, 466 U.S. 668, 687 (1984). In federal habeas corpus review, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). A habeas court reviewing a claim of ineffective assistance of counsel must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). Moreover, “[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 669. When review of the Strickland test is under § 2254(d), “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court has discretion to determine which Strickland prong to apply first, and the failure to satisfy either prong of the Strickland test obviates the need to consider the other prong. Strickland, 466 U.S. at 697. ... ...
III. GROUNDS 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6, AND 7 ARE PROCEDURALLY DEFAULTED
A. Petitioner's Unexhausted Claims
As set forth below, Petitioner failed to exhaust in the state courts his Grounds 4 and 6 claims as well as certain sub-claims asserted under Grounds 3 and 5.
1. Ground 3 sub-claims
In Ground 3, Petitioner alleges IAC of trial counsel. (Doc. 1 at 8) Petitioner asserts generally that trial counsel “failed to make a defense, present any evidence, or witnesses.” (Id.) For ease of reference for discussion, the sub-claims Petitioner asserts in Ground 3 are identified as Grounds 3a through 3i. Petitioner specifies that trial counsel should have: (3a) introduced at trial a video recorded by Corrections Officer Acosta; (3b) requested to have the shank fingerprinted; (3 c) introduced all incident reports of Officers Acosta, Ankle, Price, Garcia, and Herron, which did not include any mention of a shank, a handcuff key, or pen parts; (3d) introduced Petitioner's disciplinary reports authored by Officer Herron, which did mention a handcuff key but did not refer to a shank; (3e) introduced a photograph of a “pencil circumference size pen” of the same sort that the shank was allegedly made from; (3f) introduced a prison commissary “shopping list” to show that the commissary did not sell “pens with clickers or shorts with pockets”; (3g) introduced a copy of Department Order “601 - Administrative Investigations and Employee Discipline” which Petitioner states “explains sanctions an officer is subject to for not following policy”; and (3h) introduced a copy of Department Order “608 - Criminal Investigation” which Petitioner asserts “outlines procedure on collecting evidence.” (Id.) Petitioner alleges in Ground 3i that his trial counsel was ineffective for not “presenting the possibility of C.O. Price not cuffing [Petitioner], or C.O. Guilfoyle opening the shower door without Cruz cuffed.” (Id.)
Petitioner did not raise his Ground 3b, 3f, 3g, and 3h IAC claims by trial counsel in either his PCR petition or on petition for review in the Arizona Court of appeals. (Doc. 142 at 43-70; Doc. 14-3 at 3-23) Moreover, in his petition for review of the superior court's order denying relief on the PCR petition, Petitioner expressly raised only his 3 a, 3 c, and 3d claims when he asserted ineffective assistance of counsel because counsel failed to “request[ ] and present[ ] the exculpatory video, and other officers'] exculpatory reports and testimony.” (Doc. 14-3 at 18) Although Petitioner generally referenced Section “3E” of his pro per PCR petition, which had asserted each of his trial counsel IAC claims set forth in the PCR petition, Petitioner did not discuss or otherwise address any of the referenced claims except the 3a, 3c, and 3d claims. (Id.)
Petitioner's cross reference to the Ground 3e and 3i claims of IAC by trial counsel he had asserted in his PCR petition was not adequate under Arizona law to present the claims to the Arizona Court of Appeals on petition for review. See State v. Varela, 245 Ariz. 91, 93, 425 P.3d 267, 270 (Ct. App. 2018) (“[w]e agree with the trial court, however, that Varela has not presented a colorable claim of ineffective assistance of trial counsel. In his petition for review Varela points us to his petition for post-conviction relief, apparently attempting to incorporate his arguments there by reference. This procedure is not allowed.”) In Varela, the Arizona Court of Appeals cited then-current Arizona Rule of Criminal Procedure 32.9(c)(5)(A) (“Unless otherwise ordered, a petition or cross-petition may be accompanied by an appendix. The petition or cross-petition must not incorporate any document by reference, except the appendix”). The identical language is incorporated in the current Arizona Rule of Criminal Procedure 32.16(d). See State v. Dempsey, No. 2 CA-CR 2021-0038-PR, 2021 WL 4240371, at *1 (Ariz. App. Sept. 17, 2021).
To exhaust a claim for federal habeas corpus purposes, Petitioner must assert the claim in the Arizona Court of Appeals. See Swoopes, 196 F.3d at 1010 (“except in habeas petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.); McFadden, 399 F.3d at 998 n.3. Accordingly, Petitioner has exhausted only his Ground 3 a, 3 c, and 3d claims alleging IAC by trial counsel for failure to obtain and introduce Officer Acosta's videotape, the reports of Corrections Officers Acosta, Ankle, Price, Garcia, and Herron, or Petitioner's disciplinary reports authored by Officer Herron.
In summary, Petitioner failed to exhaust his Ground 3b, 3f, 3g, and 3h claims because he failed to raise these claims in either the superior court or the Arizona Court of Appeals in his PCR proceeding. Petitioner further failed to exhaust his Ground 3e and 3i sub-claims of IAC by trial counsel because Petitioner failed to raise such claims in his petition for review in the Arizona Court of Appeals in the PCR action. Petitioner did exhaust his 3a, 3c, and 3d sub-claims, which are considered on the merits in Section IV(B)(2), infra.
2. Ground 4 claim
Petitioner asserts in Ground 4 that his trial counsel was ineffective for failing to object to the prosecutor's statement in closing argument regarding whether Petitioner had been disciplined for the shank, that “we don't know what happened to the [Petitioner] in prison.” (Doc. 1 at 9) Petitioner asserted this claim in his PCR petition. (Doc. 14-2 at 6869) Although in his petition for review in the Arizona Court of Appeals Petitioner asserted a claim of prosecutorial misconduct based on the statement (Doc. 14-3 at 4, 12-14) and possibly a claim of IAC by counsel on direct appeal (Id. at 12-14), he did not argue his trial counsel was ineffective for not objecting to the prosecutor's closing argument statement (Id. at 3-23).
Because Petitioner did not present his Ground 4 claim to the Arizona Court of Appeals, the claim was not exhausted in that court as is required for purposes of federal habeas corpus review. See McFadden, 399 F.3d at 1000 (“To exhaust his claim, Castillo must have presented his federal, constitutional issue before the Arizona Court of Appeals within the four corners of his appellate briefing.”).
3. Ground 5 sub-claims
Petitioner's Ground 5 claim is that his trial counsel provided IAC when he failed to object to testimony by the prosecution's witnesses, including Corrections Officers Robinson, Price, Guilfoyle, Herron, and Rodarte. (Doc. 1 at 19) Petitioner contends that these officers' testimony improperly implied that Petitioner was a prison gang member. (Id. at 19-20) For ease of reference in discussion, Petitioner's claim of IAC regarding failure to object to the testimony of Officers Robinson, Price, Guilfoyle, and Herron is identified as Ground 5a. Petitioner's claim of IAC regarding failure to object to the testimony of Officer Rodarte is labeled Ground 5b. Petitioner asserted the Grounds 5a and 5b claims in his PCR petition. (Doc. 14-2 at 62-65) On petition for review in the Arizona Court of Appeals, however, Petitioner argued that his trial counsel was ineffective for not objecting to the testimony only of Officer Rodarte. (Doc. 14-3 at 16-18)
Because Petitioner in his petition for review in the court of appeals did not argue his trial counsel was ineffective for failing to object to the testimony of Officers Robinson, Price, Guilfoyle, and Herron, Petitioner has not exhausted his Ground 5 a sub-claims as to the testimony of these officers. See McFadden, 399 F.3d at 1000. Petitioner did assert his Ground 5b claim of IAC of trial counsel for failure to object to the testimony of Officer Rodarte in both his PCR petition and in his petition for review in the Arizona Court of Appeals, and this sub-claim is accordingly exhausted and is addressed on the merits in Section 4(B)(3), infra.
4. Ground 6 claim
Petitioner argues in Ground 6 that his trial counsel was ineffective for failing to object to the selection of an “all-white jury” after all Hispanics were stricken during selection. (Doc. 1 at 21) In his Reply, Petitioner agrees with Respondents that he did not fairly present his Ground 6 claim to the Arizona Court of Appeals and states he therefore “waives” the claim. (Doc. 18 at 4) The record reflects that while Petitioner asserted this claim in his PCR petition (Doc. 14-2 at 65-66), he in fact did not present the claim in his petition for review in the Arizona Court of Appeals (Doc. 14-3 at 4-6, 10-22). As a result, Petitioner did not exhaust his Ground 6 claim, which he expressly concedes.
5. Grounds 3b, 3e, 3f 3g, 3h, 3i, 4, 5a, and 6 are implicitly procedurally defaulted
Petitioner's Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, and 6 claims are unexhausted and implicitly procedurally defaulted as discussed above because it is too late under Arizona procedure for Petitioner to return to state court to assert such claims. See Ariz. R. Crim. P. 32.2(a)(3) (a defendant is precluded from relief pursuant to Rule 32.1(a) that was waived in a previous PCR petition); Ariz. R. Crim. P. 32.4(b)(3)(A) (claims filed pursuant to Rule 32.1(a) must be filed within 30 days after the mandate is issued in a direct appeal); Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b)(1), 32.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 32.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”) Arizona Rule of Criminal Procedure 32.1(b) through (h) identifies grounds for PCR relief where: (b) the court lacked “subject matter jurisdiction to render a judgment or to impose a sentence on the defendant”; (c) the sentence was not “authorized by law”; (d) the defendant is or will be in custody after his sentence has expired; (e) “newly-discovered material facts probably exist” and such facts “probably would have changed the judgment or sentence”; (f) the failure to file a timely notice of PCR was not the defendant's fault; (g) “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence”; and (h) “the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt[.]” Ariz. R. Crim. P. 32.1(b)-(h). Petitioner does not argue he is able to return to state court to present these unexhausted claims, and the record does not support such an argument.
Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or 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.” (emphasis supplied). The italicized language was added to the rule in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See id. Petitioner has not shown that any of his procedurally defaulted claims at issue in this matter allege a violation of a constitutional right that can only be waived knowingly, voluntarily, andpersonally by a defendant.
B. Petitioner's Ground 7 Claim is Subject to an Express Procedural Bar
In Ground 7, Petitioner contends that the prosecution knowingly “inserted” perjury during closing argument when the prosecutor stated that “we don't know what happened to the [Petitioner] in prison[,]” referring to whether Petitioner had been disciplined for having the shank. (Doc. 1 at 22) Petitioner alleges that the prosecutor knew the statement was false because the prosecution had disclosed Petitioner's prison discipline file to the defense and the file included no disciplinary action involving the shank. (Id.)
Petitioner asserted this claim in both his PCR petition (Doc. 14-2 at 51-53) and in his petition for review in the court of appeals (Doc. 14-3 at 8-12). The Arizona Court of Appeals addressed the claim and held that it was precluded as waived pursuant to Arizona Rule of Criminal Procedure 32.2(a)(3) because the claim was not raised at trial or on direct appeal. (Id. at 78) The court of appeals went on to hold that even if the claim were not precluded, it did not raise an issue of fundamental error. The court reasoned that Petitioner's “prison disciplinary records may have been disclosed during discovery they were not admitted a trial[]” and that the prosecutor's statement “was therefore accurate in context.” (Id.)
Because the court of appeals held Petitioner's Ground 7 claim was precluded pursuant to Arizona Rule of Criminal Procedure, the claim was subject to an express procedural bar.
Additionally, Respondents contend that Petitioner's Ground 7 claim regarding prosecutorial misconduct during closing argument is not cognizable in federal habeas corpus because Petitioner fails to refer to the violation of a federal constitutional right or federal law. (Doc. 14 at 6) Ground 7 does not allege a violation of the “Constitution or laws or treaties of the United States” as is required by 28 U.S.C. § 2254(a). However, because Petitioner's Ground 7 claim was procedurally defaulted in state court without excuse as discussed in this section and infra in Section III(C), the Court need not address the cognizability of the claim in federal habeas.
C. Petitioner fails to establish cause and prejudice or miscarriage of justice/actual innocence to excuse the procedural default of Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6, and 7
To excuse the procedural default of Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6, and 7, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice; or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750. Petitioner does not argue in either the Petition or his Reply that procedural default of any of his claims should be excused, nor does the record before the Court support such findings. Accordingly, for the reasons discussed above, Petitioner's Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5 a, 6, and 7 are procedurally defaulted without excuse.
IV. MERITS DISCUSSION
Regarding the remaining claims, for the reasons set forth below, it is recommended that the Court deny Petitioner's claims asserted in Grounds 1, 2, 3 a, 3 c, 3d, and 5b as lacking merit pursuant to § 2254(d).
A. 28 U.S.C. § 2254 - Legal Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(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). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to § 2254(d). White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, __ U.S.__, 138 S.Ct. 1188, 1192 (2018)).
Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[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.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must 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 well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Regarding § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v.Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984,1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.
The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 18 (2013), citing Wood, 558 U.S. at 293, 301.
B. Grounds 1, 2, 3a, 3c, 3d, and 5b Lack Merit
1. Ground 1 is without merit
In Ground 1, Petitioner alleges his trial counsel was ineffective for not moving to suppress evidence relating to the shank, handcuffs key, and pen parts. (Doc. 1 at 6, 17) Petitioner exhausted this claim by asserting it in his pro per PCR petition (Doc. 14-2 at 5560) and then in his petition for review in the Arizona Court of Appeals (Doc. 14-3 at 4, 1416). The Arizona Court of Appeals provided the last reasoned decision on Petitioner's Ground 1 claim in its memorandum decision. (Doc. 14-3 at 79) After setting forth the Strickland standard (Id. at 78), the court of appeals noted that Petitioner argued his trial counsel was “ineffective in failing to file a motion to suppress” (Id. at 79). The court of appeals stated that:
[Petitioner] maintains trial counsel was ineffective in failing to file a motion to suppress the shank, which he asserts was “illegally obtained” because the officer who found it “violat[ed] prison procedures requiring all evidence from a crime scene to be photographed before being moved or removed.” But, as the state points out, [Petitioner] 's “right to have illegally seized evidence suppressed does not arise when prison regulations are violated, but rather when his Fourth Amendment right to be free from unreasonable searches and seizures is violated.” State v. Bishop, 137 Ariz. 361, 363 (App. 1983). The correctional officer found the shank on the floor of the prison hall after [Petitioner] had attacked another officer. Cf. Washington v. Chrisman, 455 U.S. 1, 5-6 (1982) (plain-view exception to Fourth Amendment permits officer to seize clearly incriminating evidence or contraband when discovered where officer has right to be); State v. Rodriguez, 205 Ariz. 392,¶¶ 38-39 (App. 2003)
(seizure of gun justified based on officer's reasonably perceived immediate danger to safety). [Petitioner] has therefore not met his burden of establishing that counsel's decision not to file a motion to suppress fell below reasonable standards.(Id. at 79)
In his Reply, Petitioner contends his trial counsel should have argued that the manner in which Corrections Officer Robinson obtained the shank, key, and pen components did not comply with rules or regulations of the Arizona Department of Corrections (“ADOC”). (Doc. 18 at 5) Petitioner further appears to argue that the Arizona Court of Appeals should have found fundamental error based upon a violation of Petitioner's due process rights regarding admission into evidence of the shank, key, and pen parts. (Id. at 6-7)
To prevail on his Ground 1 claim, Petitioner must establish that the Arizona Court of Appeals' decision rejecting Petitioner's claim of IAC by trial counsel for not moving to suppress the shank, key, and pen parts was an unreasonable application of Strickland or based on an unreasonable application determination of the facts presented in his state court proceeding. 28 U.S.C. § 2254(d). Petitioner fails to do so.
Petitioner's claim of IAC by trial counsel must be subjected to a “doubly deferential” review. Pinholster, 563 U.S. at 190. The Arizona Court of Appeals concluded that Officer Robinson's collection of the shank, even if his actions violated prison procedures, did not provide the right to have the evidence suppressed. (Doc. 14-3 at 79) The court of appeals concluded that because the shank was located on the floor by Officer Robinson shortly after Petitioner had attacked another corrections officer, this did not violate Petitioner's Fourth Amendment rights. (Id. (citing Washington v. Chrisman, 455 U.S. at 5-6)) The court of appeals also cited State v. Bishop, which explained that a prisoner's “Fourth Amendment rights are extremely limited, both because of the legitimate security needs of the prison and his diminished expectations of privacy.” 137 Ariz. 361, 363, 670 P.2d 1185, 1187 (Ct. App. 1983) (citing Bell v. Wolfish, 441 U.S. 520 (1979)).
The Supreme Court has explained that “the Fourth Amendment does not protect [a prisoner's] subjective expectations of privacy that are unreasonable or otherwise ‘illegitimate[]'” and that such an expectation “must be one that society is ‘prepared to recognize as legitimate.'” New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (citing Hudson v. Palmer, 468 U.S. 517, 530 (1984) (“we conclude that prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells[.]”)). The Ninth Circuit has also held that a state prison regulation does not create a liberty interest when violation of the regulation “does not ‘present the type of atypical, significant deprivation in which a state might conceivably create'” such an interest. Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996) (concluding that a jail regulation requiring that an inmate must be present when their legal papers in their cells were searched did not create a liberty interest when the Supreme Court in Wolfish had already decided that the detainee had “no Fourth Amendment right to be present when his cell and belongings in it are searched.” (citing Wolfish, 441 U.S. at 555-57)).
Against this legal backdrop, the Arizona Court of Appeals correctly held that Petitioner had failed to meet his burden of demonstrating that his trial counsel's decision not to move to suppress the evidence fell below the Strickland standards. (Doc. 14-3 at 79) Petitioner does not establish that the court of appeals' decision was either contrary to or involved an unreasonable application of Strickland or was an unreasonable application of the facts.
2. Grounds 2, 3a, 3c, and 3d lack merit
In Ground 2, Petitioner contends that his trial counsel was ineffective when she “never motioned for” a videotape filmed by Officer Acosta that Petitioner asserts would have been exculpatory. (Doc. 1 at 7) Petitioner exhausted this claim by advancing it in both his pro per PCR petition (Doc. 14-2 at 60-62) and in his petition for review in the Arizona Court of Appeals (Doc. 14-3 at 5, 18-21).
Petitioner's Grounds 3 a, 3 c, and 3d are closely related to his Ground 2 claim and allege that his trial counsel provided IAC when she failed to introduce at trial: Officer Acosta's video (Ground 3a); the incident reports of Officers Acosta, Ankle, Price, Garcia, and Herron (Ground 3 c); and disciplinary reports involving Petitioner that were authored by Officer Herron on the day of Petitioner's attack on Officer Price (Ground 3d). (Doc. 1 at 8) As with his Ground 2 claim, Petitioner exhausted these claims by asserting them in his pro per PCR petition (Doc. 14-2 at 67) and again in his petition for review in the Arizona Court of Appeals (Doc. 14-3 at 5, 18-21).
In the last reasoned state decision on these claims, the Arizona Court of Appeals explained:
[Petitioner] also contends trial counsel was ineffective in failing to “present any defense at all.” He maintains there was an “exculpatory video,” as well as “exculpatory reports and testimony,” that should have been presented. But [Petitioner] only offers speculation that such evidence would have been admissible and helpful to his case. Moreover, counsel cross-examined the state's witnesses, challenged various jury instructions, and presented a closing argument detailing the weaknesses in the state's case. “There is no indication that counsel had not properly prepared his case.” State v.Rodriguez, 126 Ariz. 28, 34 (1980). Accordingly, [Petitioner] has not met his burden of establishing that counsel's conduct in this regard fell below reasonable standards.(Doc. 14-3 at 80)
Petitioner declares that introduction into evidence of Officer Acosta's videotape would have provided exculpatory evidence because it allegedly did not depict the shank on the floor, three inches from Petitioner's leg and did not include Officer Robinson announcing that he had found a shank. (Doc. 18 at 9) Petitioner further argues that his trial counsel was ineffective for failure to introduce the incident reports of Officers Acosta (Doc. 14-2 at 73), Ankle (Id. at 81), Price (Id. at 75), Garcia (Id. at 83), and Herron (Id. at 79), because these reports “omitted any reference to a shank, cuff-key, or pen parts[.]” (Id. at 10) Further, Petitioner contends his defense counsel was ineffective for not introducing Officer Herron's disciplinary reports (Doc. 14-2 at 87) and that the reports would have been exculpatory in that the report mentions a cuff key, but does not mention a shank. (Doc. 18 at 10)
The record, however, supports the Arizona Court of Appeals' conclusion that Petitioner's arguments of IAC by trial counsel for failing to introduce the videotape, the officers' incident reports, and Officer Herron's disciplinary reports were based on mere speculation.
Officer Robinson testified that after he heard an alert on his radio that the incident command system (“ICS”) had been activated in response to Petitioner's attack on Officer Price, he hurried to the location where Officers Price and Herron were present and had pinned Petitioner down on the floor. (Doc. 14-4 at 112-113) Officer Robinson stated that he was the third officer on the scene and that Lieutenant Wall, Officer Ankle, and a couple of other officers were on their way to the incident scene. (Id. at 113) Officer Robinson testified that as soon as he arrived at the scene, he observed the shank on the ground about three inches from Petitioner's left leg. (Id.) Officer Robinson said he immediately picked up the shank to remove it from the area where Petitioner was still being subdued and placed the shank in his pocket. (Id. at 114)
The incident reports authored by several of the officers involved in the incident on September 17, 2013, document that Lieutenant Wall was a shift supervisor/commander on duty that day. (Doc. 14-2 at 73, 77, 81, 85, 87, 89)
The record is clear that the officer being referenced was actually Officer Ankle and not “Hinkle,” as recorded by the court reporter. (Doc. 14-2 at 81, 83, 89)
This testimony, which is not contradicted in the record, supports a conclusion that Officer Robinson located the shank before Officer Acosta arrived at the scene and began filming. Petitioner attached as an exhibit to his PCR petition a portion of an investigations report by the ADOC Office of the Inspector General stating that “[n]o video camera was used during the initial use of force on [Petitioner] due to the spontaneous nature of the incident and the speed at which the events unfolded.” (Doc. 14-2 at 97) The incident report submitted by Officer Acosta noted only that he “was responsible in operating the video camera from the time [Petitioner] was subdued and restrained to the time he was escorted to [Petitioner's new cell with enhanced security].” (Doc. 14-2 at 73) As noted, Officer Robinson testified that he picked up the shank before Petitioner was fully subdued and restrained.
Further, the incident reports of Officers Acosta, Ankle, Price, Garcia, and Herron cannot plausibly be considered exculpatory merely because the reports failed to include any mention of a shank. Officer Robinson testified that once Petitioner had been subdued, Robinson and Officer Ankle took Petitioner on a gurney to Lieutenant Wall's office. (Id.) Officer Robinson stated that after Lieutenant Wall spoke to Petitioner briefly in the office, they took Petitioner to a medical station where Petitioner refused medical treatment. (Id. at 116) Officer Robinson told the jury that he and Officer Ankle took Petitioner to a different area of the unit with enhanced security where Petitioner was showered to remove the pepper spray, after which the officers put Petitioner in a cell. (Id.) Officer Robinson further testified that after he and other officers located the pen parts in Petitioner's cell, Robinson went to the shift commanders' office where he placed the shank, handcuff key, and pen parts in a baggie. (Id. at 132) Officer Robinson stated that after his shift ended at 10:00 p.m., nearly five hours after the incident, he was transported in an ADOC van to the main warden complex, where he placed the baggie containing the evidence in a chain of evidence box and signed a log for the evidence. (Id. at 132) Officer Robinson stated that protocol for locating and securing evidence required that no one else was allowed to handle the evidence, and that an officer must seal the evidence, place it in a secured locker, and sign for it. (Id. at 133)
While it is accurate that none of the officers' incident reports except Officer Robinson's mentioned the discovery of a shank, this is unremarkable given Officer Robinson's testimony that he immediately pocketed the shank when he saw it next to Petitioner and retained custody of the shank while he placed it, the handmade cuff key, and pen parts in a baggie before depositing this evidence in a secure chain of evidence locker. Officer Robinson was the officer who located the shank and had sole custody of it prior to placing it in the locked evidence box.
Officers Price and Herron were the only officers at the scene before Officer Robinson arrived. Officer Price testified at trial that after Petitioner attacked him, Officer Herron was the first officer to respond to the incident. (Doc. 14-4 at 26-27) Officer Price explained that Officer Herron had sprayed both Petitioner and Price with pepper spray and after that Price could only see “a little bit but, you know, my eyes kept closing.” (Id. at 30) Officer Price testified he did not see the shank prior to or at the time of the attack, after which he was escorted away so that he could try and wash the pepper spray out of his eyes. (Id. at 30-31, 48-49) Officer Price testified he first observed the shank after the attack when he went to the shift commanders' office and another officer showed the shank to him. (Id. at 31)
Officer Robinson wrote his incident report on September 17, 2013, the day of the incident (Doc. 14-2 at 89) and the same day that Officers Acosta, Ankle, Garcia, Price, and Herron wrote their reports (Id. at 73, 81, 83, 75, and 79, respectively). Even if Officers Acosta, Ankle, Garcia, Price, and Herron all eventually learned about the shank later that day as Officer Price testified that he had, it was logical that Officer Robinson would include in his incident report his discovery and safekeeping of the shank, while the other officers, who did not see the shank during the incident, did not discuss the shank in their reports. In fact, Officer Herron witnessed Officer Robinson's incident report (Doc. 14-2 at 89) and at least by the time he witnessed the report he would have known that Robinson had reported his discovery of the shank.
It is similarly not remarkable that Officer Robinson was the only of the reporting corrections officers to discuss the homemade cuff key in his incident report. Officer Robinson noted in his report that he had found and removed the cuff key from out of Petitioner's hand cuffs while in the supervising commander's office after the incident. (Doc. 14-2 at 89) Moreover, as is noted below, Officer Herron also was aware of the cuff key immediately after the attack and he did mention the key in the two disciplinary reports he authored on the day of the attack.
Petitioner's argument that his trial counsel should have introduced the disciplinary reports authored by Officer Herron as exculpatory evidence is also based on speculation. Officer Herron issued two inmate disciplinary reports on the day of Petitioner's attack on Officer Price. One report addressed a charge of promoting prison contraband (Doc. 14-2 at 87), while the other related to a charge of assault on staff (Id. at 85). Each report noted that Petitioner had used a handmade cuff key to free his hands and neither mentioned the location of a shank. (Id. at 85, 87)
As discussed, because the evidence establishes that Officer Herron did not see the shank at the time of the attack, and Officer Robinson had custody of the shank from the time he discovered it until it was placed in the evidence box, it is reasonable that Herron did not discuss the shank in his disciplinary reports written on the day of the attack. In contrast, the evidence demonstrates that Officer Herron was closely associated with the cuff key in the aftermath of the attack. At trial, Officer Herron testified that while he was attempting to refasten Petitioner with the handcuffs while Petitioner was subdued on the ground, he was not able to lock the handcuff's because “it seemed like there was something broken off in there[.]” (Doc. 14-4 at 95, 100, 101-102) Officer Herron recalled that officers had to place another set of handcuffs on Petitioner. (Id. at 95-96) Officer Herron explained that photographs were taken of the handcuffs in the shift commander's office “because there was a broken pin piece like a homemade key stuff[ed] in one of them.” (Id. at 104) Thus, it was entirely reasonable for Officer Herron to have discussed the cuff key in his disciplinary reports but to have omitted mention of the shank.
The record evidence supports the conclusions that: (1) Officer Acosta commenced videotaping after Officer Robinson discovered and removed the shank from the attack site; and (2) there were logical reasons why Officer Robinson reported the discovery of the shank while the other reporting officers did not. Given these circumstances, there were good reasons for Petitioner's trial counsel to decide it was not beneficial to Petitioner's case to introduce Acosta's videotape, the incident reports authored by Officers Acosta, Ankle, Garcia, and Price, or the incident report and disciplinary reports written by Officer Herron. Moreover, on this record Petitioner is unable to establish prejudice from his trial counsel's alleged ineffective representation by showing that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The Arizona Court of Appeals concluded that Petitioner's argument that Officer Acosta's videotape and the incident reports of Officers Acosta, Ankle, Garcia, Price, and Herron were exculpatory and should have been admitted at trial was speculative, not supported by the record, and did not establish a claim of IAC by Petitioner's trial counsel. As discussed, a review of the record confirms this conclusion. (Doc. 14-3 at 80) For the reasons discussed supra, the court of appeals' decision was not “contrary to, or involved an unreasonable application” of Strickland, and was not “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).
3. Ground 5b is without merit
In Ground 5b, Petitioner argues his trial counsel was ineffective for failing to object to the trial testimony of prosecution witness Officer Rodarte. (Doc. 1 at 19-20) Petitioner contends that his trial counsel was ineffective for not objecting to the testimony of Officer Rodarte when Rodarte stated that his past experience included monitoring prison gang members, who were placed in the Browning Unit. (Doc. 1 at 19) Petitioner notes that Officers Price, Guilfoyle, Herron, and Robinson had previously testified that at the time of Petitioner's attack on Officer Price, they worked in the Browning Unit, or in a wing that was part of the Browning Unit. (Id. at 19-20) Petitioner asserts that the jury could have been able to link the testimony of Officer Rodarte with the testimony of Officers Price, Guilfoyle, Herron, and Robinson to infer that Petitioner must be a prison gang member and therefore of poor character. (Id. at 20)
Petitioner exhausted this claim by asserting it in his PCR petition (Doc. 14-2 at 6265) and again on petition for review in the Arizona Court of Appeals (Doc. 14-3 at 16-18). The last reasoned decision on this claim was the memorandum decision of the Arizona Court of Appeals on Petitioner's petition for review in his PCR proceeding. The court of appeals rejected Petitioner's claim, stating:
[Petitioner] next argues trial counsel was ineffective in failing to object to the state's “gang expert.” He points out that, in response to his petition below,
the state asserted the witness was not a gang expert but instead offered testimony “for the purpose of explaining to the jury the inner workings and protocols of a prison.” [Petitioner] therefore reasons that the state has “waived the issue” by conceding the witness was not a gang expert. But [Petitioner] misapprehends the doctrine of waiver, which generally applies when a party fails to timely and sufficiently raise an argument. See State v.Carver, 160 Ariz. 167, 175 (1989).
[Petitioner] has provided no affidavits or other evidence in the trial court suggesting trial counsel's failure to object to the witness falls below reasonable standards. See Ariz. R. Crim. P. 32.7(e) (“The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations in the petition.”). And he cites no authority in his petition for review, nor did he below, showing similar decisions by counsel have been found to constitute ineffectiveness. His bald assertion that counsel erred is insufficient to sustain his burden of demonstrating that counsel's conduct fell below reasonable standards. See State v. Donald, 198 Ariz. 406, ¶ 21 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim “must consist of more than conclusory assertions”).(Doc. 14-3 at 79)
Officer Rodarte testified as the only witness on the second day of Petitioner's two-day trial. (Doc. 14-5 at 16-43) Officer Rodarte explained that he was a supervisor in the criminal investigations unit of the ADOC, consisting of officers who have been trained and certified as sworn police officers in Arizona with arresting authority over crimes. (Id. at 16-17) When asked about his experience, Officer Rodarte explained that many years prior, he had worked in the ADOC as an officer in the special security unit that monitored prison gang activities which resulted in gang members being placed at the Browning Unit. (Id. at 17)
Officer Rodarte was questioned by the prosecution generally about his experience regarding: investigating the use or discovery of handmade prison shanks and associated prison procedures (Id. at 21-24, 31-33); the range of injuries such shanks can be used to inflict (Id. at 26); where shanks are commonly concealed in the prison, including on or in the bodies of inmates (Id. at 26-28); and prison procedures for patting down inmates to try and locate contraband (Id. at 28-30). On cross-examination, defense counsel questioned Officer Rodarte about standard prison procedure for securing evidence, including chain of custody, whether videotaping is required when an ICS is activated, whether fingerprinting of shanks is required, and whether inmates found with weapons can be presumed to have intended to use the weapon. (Id. at 33-36, 42-43) Officer Rodarte also was questioned about the shank discovered in Petitioner's case (Id. at 25) and about whether the exhibits used in the prosecution case appeared to have been preserved and documented according to prison procedure (Id. at 37-38).
None of Officer Rodarte's testimony was focused on or directed specifically to prison gang members. Officer Rodarte's remark that in the past he had worked in the special security unit and that prison gang members had been placed in the Browning Unit was made solely in the context of Rodarte's prior employment history. At no time did any questioning of Rodarte or Rodarte's testimony state or suggest that the Browning Unit housed only prison gang members, either at the time Rodarte worked with the special security unit years before, or at the time of trial. To conclude that Officer Rodarte's comment that prison gang members had been placed in the Browning Unit years in the past would lead the jury to infer that Petitioner must be a gang member because he was housed in a Browning Unit wing would be tenuous at best. Although Officer Price testified that the day of the attack he was working in the “area, wing 4, where the STGs are[,]” (Doc. 14-4 at 19), there was never any testimony stating that either the Browning Unit or wing 4 of the unit at the time of the attack exclusively held gang members or that Petitioner was a prison gang member.
The following day, Officer Rodarte explained that the term STG referred to a “security threat group” which he said was the “politically correct way of saying prison gang.” (Doc. 14-5 at 18).
The Arizona Court of Appeals stated that Petitioner had failed to point to any record evidence demonstrating that his trial counsel's failure to object to Officer Rodarte's testimony regarding the Browning Unit was representation that fell “below reasonable standards.” (Doc. 14-3 at 79) The court of appeals further concluded that Petitioner's “bald assertion that counsel erred is insufficient to sustain his burden of demonstrating that counsel's conduct fell below reasonable standards.” (Id.) Thus, the court of appeals relied on the first prong of the Strickland standard requiring Petitioner to demonstrate that his trial counsel's representation was deficient. 466 U.S. at 687.
Petitioner's speculative argument is inadequate to establish that Petitioner's counsel's representation was deficient, that is, “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. Had defense counsel objected to Officer Rodarte's statement, an attempt to explain such an objection likely would have risked exposing the fact to the jury that Petitioner indeed was “a validated inmate of a Security Threat Group” (Doc. 1 at 19), or could have raised the question in the jurors' minds. Declining to draw the jurors' attention to this part of Rodarte's testimony would have been a reasonable, strategic choice by trial counsel. See Richter, 566 U.S. at 109 (explaining that courts need not require proof of counsel's actual strategy and emphasizing that “there is a ‘strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.'” (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam))).
For these reasons, Petitioner has not established that the Arizona Court of Appeals' decision rejecting his Ground 5b claim was either contrary to, or involved an unreasonable application of Strickland and its Supreme Court progeny, or was based on an unreasonable application of the facts.
V. EVIDENTIARY HEARING
In his Reply, Petitioner requests the Court to conduct an evidentiary hearing. (Doc. 18 at 13-14) The AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). Title 28 United States Code section 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court which adjudicated the claim on the merits. Pinholster, 563 U.S. at 181. Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v.Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
Petitioner does not argue any basis for an evidentiary hearing or explain what facts would be resolved at such hearing, or why such a hearing is not barred by 28 U.S.C. § 2254(e)(2). Moreover, undersigned finds that the record is adequately developed for the Court to resolve Petitioner's claims by reference the state court record. Accordingly, it is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed.”).
VI. CONCLUSION
For the reasons set forth above, undersigned recommends that the Court find that Petitioner procedurally defaulted Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6, and 7 of the Petition without excuse and that Petitioner has failed to establish that habeas relief is warranted on the merits of Grounds 1, 2, 3 a, 3 c, 3d, and 5b. It is therefore recommended that Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6, and 7 be dismissed with prejudice and that Grounds 1, 2, 3 a, 3 c, 3d, and 5b be denied.
Assuming the recommendations herein are followed in the District Judge's judgment, undersigned recommends that a certificate of appealability be denied because: (1) reasonable jurists would not find it debatable whether the District Judge was correct in the procedural ruling on the claims asserted in Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6, and 7; and (2) Petitioner has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's Grounds 1, 2, 3 a, 3 c, 3d, and 5b to be “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, IT IS THEREFORE RECOMMENDED that Juan Alberto Cruz's Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that Petitioner's request for an evidentiary hearing be denied.
IT IS FURTHER RECOMMENDED that 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 Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this 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. The parties shall have fourteen days within which to file responses to any 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 determination 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.