Opinion
CV-21-01414-PHX-JJT (DMF)
10-24-2022
Juan Alberto Cruz, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Honorable John J. Tuchi, United States District Judge
Before the Court is the Report and Recommendation (“R&R”, Doc. 19) submitted by United States Magistrate Judge Debra M. Fine, recommending that the Court deny and dismiss with prejudice Juan Alberto Cruz's (“Petitioner”) Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1). Petitioner timely filed a 12-page Objection (Doc. 26) to the R&R, and Respondents filed a Response (Doc. 27) to the Objection.
In the thorough and comprehensive 36-page R&R, Judge Fine individually addressed each of the seven grounds Petitioner raised, including the nine sub-issues raised within Ground 3 and the two sub-issues raised within Ground 5, analyzing in total 16 arguments. Judge Fine correctly concluded that Petitioner failed to exhaust in the state courts Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6 and 7, and thus those grounds were procedurally defaulted without a showing of cause and prejudice to trigger any form of tolling, or any showing of miscarriage of justice or actual innocence that might trigger relief under Schlup v. Delo, 513 U.S. 298 (1995).
....
....
In his Objection, Petitioner acknowledges Grounds 4, 6 and 7 are procedurally defaulted without excuse or Schlup exception, and the Court therefore adopts Judge Fine's R&R as to those Grounds and will dismiss the Petition with prejudice as to them.
Petitioner does raise objections to Judge Fine's recommended conclusion that Grounds 3b, 3e-i and 5a are unexhausted and therefore defaulted, urging he did fairly present each to the state court. With this the Court cannot agree. Petitioner argues each of these grounds and sub-grounds were embodied in his argument to the state court on postconviction review that his counsel was ineffective for presenting “no defense at all.” He urges that this ver batim statement in his PCR papers put the state appellate court on notice of the discrete arguments he now raises as Ground 3b (that his trial counsel failed to request fingerprint analysis of the shank), Ground 3e (trial counsel failed to introduce a photograph of a pen similarly in size to the shank at issue), Ground 3f (counsel failed to introduce a prison commissary shopping list), Grounds 3g and 3h (failure to introduce Department of Corrections policy provisions and orders), Ground 3i (failure to adduce evidence that guards may have moved Petitioner without cuffing him), and 5a (counsel failed to object to testimony of certain prison employee witnesses) in support of his ineffective assistance of counsel claim.
Judge Fine correctly noted that of the above sub-grounds, Petitioner did not mention Grounds 3b, 3f, 3g, 3h or 5a at all in his PCR petition or his petition for review by the Arizona Court of Appeals, and his cross-reference to Grounds 3e and 3i in his PCR petition was inadequate to present the claims to the state court pursuant to Ariz. R. Crim. P. 32.16(d). See, e.g., State v. Varela, 245 Ariz. 91, 93 (App. 2018). Thus Petitioner is left with the argument that his dragnet assertion of “no defense at all” puts the state appellate court on notice and in a position to consider all of the particular claims that the specific omissions set forth above constituted ineffective assistance of counsel. That argument fails. The Court thus will overrule Petitioner's objections to Judge Fine's recommended conclusions as to Grounds 3b, 3e-i and 5a, and dismiss the Petition as to them with prejudice as well.
Judge Fine correctly concluded that Petitioner had exhausted and therefore properly presented remaining Grounds 1, 2, 3 a, 3 c, 3d, and 5b, and therefore evaluated each on the merits. Upon such evaluation, the Court concludes she correctly reasoned that each ground failed.
As to Ground 1-that trial counsel was ineffective for failing to seek suppression of the shank, cuff key and pen parts, Judge Fine recognized that suppression of evidence is an available remedy only when that evidence was obtained through or as a result of the state's violation of a defendant's constitutional right, and where a violation of prison procedures does not also comprise a violation of a constitutional right, suppression will not lie. Judge Fine also set forth how the evidence demonstrated the shank and cuff key were found in plain sight at the location of the assault, and the pen parts were found after a search of Petitioner's cell, in which he has a diminished right to privacy in the correctional setting. As Judge Fine concluded, the state appellate court's ruling was not an unreasonable application of the Strickland standard. The Court will overrule this objection and deny the Petition on the merits as to Ground 1.
The Court similarly will overrule Petitioner's objections to the R&R as to Grounds 2, 3a and 3c-d. Judge Fine exhaustively analyzed why Petitioner's claims in these grounds that trial counsel's failure to call for or introduce certain pieces of evidence were speculative, and she has demonstrated why those evidentiary items were ambiguous at best. Judge Fine having treated so thoroughly with her analysis on this point (R&R at 24-30), the Court will not now repeat it. The decisions not to use or refer to evidence that does not clearly help a client's case and may in some cases hurt it are due the deference commanded by Strickland, and the state court's conclusion on that point, once made, enjoys another level of deference per Pinholster. The Court will overrule these objections and deny the Petition on the merits as to Grounds 2, 3 a and 3c-d.
Finally, the Court will overrule Petitioner's objection to the R&R's conclusions regarding Ground 5b, which asserts that trial counsel was ineffective for failing to object to Officer Rodarte's testimony that at some point much earlier in his career he had worked in the DOC's Browning Unit, which at that time housed some gang members. Petitioner's assertion that because the jury knew he lived on Browning unit at the time of the incident at issue, jurors could have concluded Petitioner was a gang member and then convicted him out of bias over that conclusion is also highly speculative. As Judge Fine noted, none of Officer Rodarte's testimony focused on or was directed specifically to gang members. His biographical reference to his prior assignment long before the incident at issue, over the course of longer testimony, would not reasonably lead jurors to conclude that everyone in Browning unit was a gang member, or that such location of gang members still obtained many years after Officer Rodarte ended his assignment there. Thus it is speculation whether any juror even made the predicate connection, let alone was prejudiced by it. And such a speculative argument does not establish deficiency in counsel's trial performance for purposes of Strickland. The Court will overrule this objection and deny the Petition on the merits as to Ground 5b.
Judge Fine set forth the correct law governing the Court's limitations on the ordering of an evidentiary hearing. Petitioner has not satisfied the requirements of 28 U.S.C. § 2254(e)(2). There is no basis for such a hearing in this matter. The Court will deny Petitioner's request for same and overrule his objection to the R&R on this point.
IT IS THEREFORE ORDERED overruling Petitioner's Objections (Doc. 26) to the R&R and adopting the R&R (Doc. 19) in whole.
IT IS FURTHER ORDRED denying Petitioner's request for an evidentiary hearing.
IT IS FURTHER ORDERED dismissing the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) as to Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6 and 7.
IT IS FURTHER ORDERED denying the Petition as to remaining Grounds 1, 2, 3a, 3c, 3d and 5b.
IT IS FURTHER ORDERED denying a Certificate of Appealability. Each of Grounds 3b, 3e, 3f, 3g, 3h, 3i, 4, 5a, 6 and 7 are subject to a plain procedural bar whose application reasonable jurists would not find debatable. And as to Grounds 1, 2, 3a, 3c, 3d and 5b, Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Court finds jurists of reason would not find its rejection of these grounds debatable or wrong.
IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly and close this matter.