Fuqua v. Unknown Party

Full title: Michael Ray Fuqua, Petitioner v. Unknown Party, et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Dec 8, 2022

CV-22-8018-PCT-DJH (JFM) (D. Ariz. Dec. 8, 2022)

Opinion

CV-22-8018-PCT-DJH (JFM)

12-08-2022

Michael Ray Fuqua, Petitioner v. Unknown Party, et al., Respondents.

James F. Metcalf United States Magistrate Judge

REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

James F. Metcalf United States Magistrate Judge

Petitioner has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 13). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

I. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

The following summary of the facts is drawn from the decision of the Arizona Court of Appeals in disposing of Petitioner's direct appeal, which purported to present the facts in the light most favorable to sustaining the judgment.

¶ 2 K.C. testified that in the late summer of 2005 she was a confidential informant for a law enforcement drug task force in Navajo County. In that capacity, she participated in three controlled purchases of methamphetamine from Fuqua at his apartment over the course of seventeen days in August and September 2005. Fuqua wore a handgun in his waistband during each of the three transactions, and K.C. noticed he also kept another gun in his apartment. The amounts of methamphetamine K.C. purchased ranged from 3.05 to 3.38 grams.

¶ 3 Sometime in the evening of September 14, 2005, Fuqua called K.C. at the bar where she worked to request the use of her car to

deliver two ounces of methamphetamine he recently acquired. K.C. acquiesced and promptly informed the task force that Fuqua would be coming to the bar to pick up her vehicle. The task force officers set up surveillance around the bar.

¶ 4 An unidentified pick-up truck eventually dropped off Fuqua in the bar's parking lot. He carried a duffel bag, which he set in K.C.'s car and proceeded to the bar's entrance. The officers arrested Fuqua, searched K.C.'s car and found two baggies containing 35.89 grams of methamphetamine in the duffel bag. The officers also discovered in the duffel bag two holsters, two loaded revolvers, and ammunition. After being transferred to the county jail, Fuqua gave an officer a small baggie containing 1.5 grams of methamphetamine that he had hidden between his toes.

(Exh. P, Mem. Dec. 9/4/08.)¹

1 Exhibits herein are referenced as follows: to the Amended Petition (Doc. 13) as “Exh. P__” (Exhs. P1-P12); to the Answer (Doc. 20) (Exhs. A-DDD, and FFF-HHH), Notice of Errata (Doc. 22) (Exh. EEE) and Response to Motion to Expand (Doc. 27) (Exhs. III-RRR), as “Exh. ___”; and to the Reply (Doc. 23) as Exh. R___” (Exhs. R1 to R20).

B. PROCEEDINGS AT TRIAL

Petitioner was indicted in Navajo County Superior Court in case CR2005-0540, with a Supervening Indictment (Exh. A) filed on September 20, 2005 charging him with: sale of dangerous drugs (3 counts); weapons misconduct (8 counts); use of a building for drugs (3 counts); use of wire or electronic communications in a drug transaction (3 counts); possession for sale; transportation for sale; drug paraphernalia, and possession. The state withdrew the building, wire communication, transportation and drug paraphernalia charges prior to trial. (Exh. P, Mem. Dec. 9/4/08 at ¶ 5, n. 2; Exh. RRR, Present. Rep. at Attach. Indictment, Doc. 27-2 at 14, et seq.) The state alleged three historical felonies, commission on probation, and various aggravating factors. (Id. at ¶ 5.)

Petitioner engaged in a settlement conference on a combined plea offer concerning the instant case and the related conspiracy to commit murder, but declined to accept the offer. (Exh. B, R.T. 4/4/06.) Petitioner proceeded to trial, testified (the defense' only witness) as to his purportedly exonerating work schedule (Exh. H, R.T. 12/1/06 at 51-79), and defense counsel argued he had been misidentified based on the voice recordings, and entered KC's vehicle on the night of the arrest to repair her radio. (Exh. I, R.T. 12/1/06 at 17-22). Petitioner was convicted by the jury on all counts, and the jury and court found various aggravating factors. (Exh. P, Mem. Dec. 9/4/08 at ¶ 6.) On March 7, 2007, Petitioner was sentenced to various concurrent prison terms, the longest of which was 19.75 years on the charge of possession of dangerous drugs for sale. (Id.; Exh. E, RT 3/7/07.)

C. OTHER PROSECUTION

In the meantime, in a separate Arizona prosecution (CR2005-0569), Petitioner had been indicted, tried, and convicted on charges of conspiracy to commit murder involving a plot to kill the informant (K.C.) in the instant prosecution. Petitioner appealed, arguing inter alia violation of attorney client privilege by testimony from trial counsel from this case. The appellate court reversed, finding the trial court erred in precluding evidence of Petitioner's statements to other inmates indicating he was only pretending to participate in the murder plot. (Exh. NN, Mem. Dec. 12/16/10 in CR2005-0569.) On remand, Petitioner was again convicted and sentenced to life. He again appealed, but his conviction and sentence were affirmed. (Exh. SS, Mem. Dec. 2/14/13 in CR2005-0569).

D. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal, filing through counsel an Opening Brief (Exh. N) arguing: (1) a Confrontation Clause claim regarding cross-examination of the CI (K.C.) regarding her prior convictions; (2) a Confrontation Clause claim regarding crossexamination of the CI (K.C.) regarding her prior bad acts; (3) shifting of the burden of proof; (4) prosecutorial misconduct by vouching; and (5) sentencing error regarding aggravating factors.

In a Memorandum Decision issued September 4, 2008 (Exh. P) the Arizona Court of Appeals found no merit to the asserted claims, and affirmed Petitioner's convictions and sentences.

Petitioner was granted an extension through November 10, 2008 to petition the Arizona Supreme Court for review. (Exh. S, Order 10/20/08.) However, Petitioner did not seek further review. (Amend. Pet., Doc. 13 at 2.) By December 1, 2008, the Arizona Court of Appeals issued its Mandate. (Exh. HHH, Trial Court Docket at 300.)

E. PROCEEDINGS ON POST-CONVICTION RELIEF

1. First PCR Proceeding

On September 19, 2008, Petitioner commenced his first post-conviction relief (PCR) proceeding by filing through appellate counsel, Ackerley, a PCR Notice (Exh. Q). That notice included a request to appoint substitute counsel. That request was denied, and the time for filing the PCR petition extended. (Exh. R, Order 12/5/8.)

From there, the PCR proceeding took a meandering course. No petition was timely filed by Ackerley, and the matter was dismissed. (Exh. U, Order 1/12/09.) Petition then filed a pro per Motion to Rescind (Exh. V), which the Court construed as a motion for rehearing, and affirmed the continuing appointment of appellate counsel Ackerley. (Exh. PPP, ME (“Notice”) 1/29/09. See also Exh. Z, Order 3/4/09.) Petitioner then filed pro per a Supplemental PCR Petition and Motion for Mistrial (Exh. W) (which argued that the court reporter's certification had lapsed), and a PCR Petition (Exh. Y). The PCR court then again reaffirmed the appointment of appellate counsel Ackerley (but let the pro per petition(s) stand), and set deadlines for responsive briefing. (Exh. Z, Order 3/4/09.)

Eventually, the PCR court appointed new counsel, McCoy, and granted leave for counsel to file one supplement to Petitioner's pro per filings. (Exh. BB, Order 5/5/09.) However, McCoy then moved to withdraw (Exh. CC), and filed a Supplemental Petition (Exh. DD). McCoy was subsequently allowed to withdraw and counsel Candaleria was appointed. (Exh. EE, Order 7/23/09.) Candelaria then filed an Amendment to Supplemental Petition (Exh. GG). The state construed this as a motion to amend and responded (Exh. HH), urging denial of the amendment.

The PCR court eventually conducted a series of evidentiary hearings. (See Exhs. II (RT 12/8/09), JJ (RT 1/15/10), KK (RT 12/20/10), LL (3/5/10), and MM (10/28/10)), and granted the Petition, having found ineffective assistance of counsel related to: (a) jail videos from Petitioner's surrender of the hidden methamphetamine he possessed on arrest; (b) evidence that a search of Petitioner's residence on arrest revealed no incriminating evidence; (c) failure to interview or timely interview two witnesses; (d) failure to discover a photograph; (e) failure to pursue or challenge DNA testing; (f) failure to investigate exculpatory purchase records; (g) failure to evaluate Petitioner's testimony or advise him on testifying; (h) failure to present diagrams of the scene and to cross-examine witnesses; (i) failure to call Petitioner's mother to testify; and (j) failure to secure transcripts and voice analysis of recordings. Petitioner's convictions and sentences were vacated. (Exh. OO, Oder 1/18/11.)

The state sought review by the Arizona Court of Appeals (Exh. PP Pet. Rev.), and that court reversed, finding inadequate evidence to support a finding of prejudice.

Petitioner sought review by the Arizona Supreme Court, which summarily denied review on November 26, 2013. (Exh. UU, Order 11/26/13.)

2. Second PCR Proceeding

On December 24, 2013, Petitioner commenced his second post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. VV). Counsel was appointed (Exh. WW, Order 2/12/14) who eventually filed a PCR Petition (Exh. YY) and PCR Supplement (Exh. BBB) and exhibits (Exh. CCC).

The PCR court denied relief, finding the claims either without merit as based on ineffectiveness of PCR counsel, or waived by failure to raise them in the first PCR proceeding. (Exh. DDD, Order 10/9/20.)

Petitioner then filed a Petition for Review (Exh. EEE, Doc. 22-1).² The Arizona Court of Appeals granted review, but summarily denied relief, citing only the failure to show the requisite abuse of discretion. (Exh. FFF, Mem. Dec. 7/15/21.)

2 The original Exhibit EEE provided with the Answer (Doc. 20-11 at 2, et seq.) omitted pages. Respondents filed a Notice of Errata, and provided a complete copy (Doc. 22-1). References to Exhibit EEE herein are to the latter, complete copy.

Petitioner then sought review by the Arizona Supreme Court, which summarily denied review on November 8, 2021 (Exh. GGG).

F. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 2, 2022 (Doc. 1). That petition was dismissed for failure to utilize the required form. (Order 2/8/22, Doc. 6). Petitioner then filed the instant Amended Petition (Doc. 13). Petitioner's Amended Petition asserts the following four general grounds for relief:

(1) Petitioner received ineffective assistance of trial counsel;

(2) Petitioner received ineffective assistance of appellate and post-conviction relief counsel;³

(3) Petitioner received ineffective assistance of counsel for his second petition for post-conviction relief; and

(4) The Arizona Court of Appeals and Arizona Supreme Court erred in denying Petitioner post-conviction relief.

(Order 4/19/22, Doc. 14 at 2.) The undersigned denominates the general subclaims in Ground 1 as follows:

- Ground 1A - ineffective assistance of trial counsel re defenses:

- Ground 1B - ineffective assistance of trial counsel re conditions of pretrial confinement;

- Ground 1C - ineffective assistance of trial counsel re preliminary hearing;

- Ground 1D - ineffective assistance of trial counsel re multiple charges; and

- Ground 1E - ineffective assistance of trial counsel re misstatements of law in settlement proceedings.

In Ground 1A Petitioner argues:

Trial Counsel refused to investigate Petitioners defense claims, refused to ask State Witnesses basic questions, told the Trial Court in the 1st PCR Evidentiary Hearings that it was only her job to "POKE HOLES" in the States case against her client. The Trial Court GRANTED Petitioner's PCR on January 18th 100 2011 for at least 15 separate points of Trial Counsel's Ineffectiveness (see Exhibit 1).

(Amend. Pet., Doc. 13 at 4.)

3 The undersigned construes the reference to “appellate” counsel to be part of the identification of PCR counsel, Mr. Ackerly, who had also served as appellate counsel, i.e. “Appellate/First PCR Counsel.” (Amend. Pet., Doc. 13 at 7.) The substance of the claim is subtitled “Ineffective Assistance of Post-Conviction Relief Counsel.” (Id.) Throughout the substance of Ground 2, Petitioner references only “PCR Counsel,” and addresses only conduct in the PCR proceeding. (Id. at 8-9.)

Petitioner offers no additional enumeration of the nature of the defenses underlying Ground 1A. Respondents explain that the PCR court granted relief in the 1^st PCR on only 10 claims, and thus have construed Ground 1A as related to those ten topics raised in Petitioner's 2^nd PCR proceeding. (Answer, Doc. 20 at 29, et seq. See also Exh. OO, Order 1/18/11 at 5-6, ¶¶ 12(a)-12(j).), Petitioner does not oppose that construction. (Reply, Doc. 23 at 6, et seq.) The undesigned adopts Respondents' construction, and denominates the subclaims in Ground 1 as regarding trial counsel's failure to pursue defenses related to:

- 1A(1) jail video;

- 1A(2) search of residence;

- 1A(3) witness interviews;

- 1A(4) bloody tissue;

- 1A(5) DNA results;

- 1A(6) Autozone purchases;

- 1A(7) Petitioner's testimony;

- 1A(8) Diagrams;

- 1A(9) Petitioner's mother; and

- 1A(10) voice identification expert

Response - On June 28, 2022, Respondents filed their Answer (Doc. 20). Respondents concede the Amended Petition is timely, but argue: (1) Grounds 2, 3, and 4 do not raise cognizable claims because they concern purported constitutional violations occurring in the PCR proceedings; (2) Grounds 1B, 1C, 1D, and 1E were procedurally defaulted in Petitioner's 1^st PCR proceeding, and/or procedurally barred in his 2^nd PCR proceeding; and (3) the state court's rejection on the merits of Grounds 1A survives deferential review under 28 U.S.C. § 2254(d) and (e).

Reply - Because Respondents have relied upon a failure to properly exhaust state remedies, the Court set a date certain for a reply and directed:

(B) Any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts shall be supported by specific references to the location of the presentation of the claim, i.e. by exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17 - 2/23”).

(Order 7/5/22, Doc. 21 at 1-2.)

(C) Any assertions in the reply that Petitioner's claims addressed on the merits by the state courts meet the standards of 28 U.S.C. § 2254(d) must be supported by: the specific error under U.S. Supreme Court law; and/or the erroneous factual determinations and why the state court determination of those facts was unreasonable in light of the evidence before the state courts.

(Id. at 2.)

On July 26, 2022, Petitioner filed a Reply (Doc. 23). Petitioner addresses: the cognizability of his claims in Grounds 2 (IAC in 1^st PCR), 3 (IAC in 2^nd PCR), and 4 (constitutional errors in PCR); cause and prejudice to excuse the procedural default of Grounds 1B (IAC re confinement), 1C (IAC re preliminary hearing), 1D (IAC re multiple charges), and 1E (IAC re misstatements of law); and the merits of his claims in Ground 1A(1).

Petitioner also asserts that he raised additional claims that Respondents have not opposed, i.e.: (A) the trial court presiding judge, Ruechel, was biased in favor of her husband, the prosecutor, and as a result “frustrated” Petitioner's appeal; (B) the trial court delayed his 2^nd PCR proceeding for seven years by failing to provide him the court record and transcripts; (C) the trial court reporter was not certified and the transcripts had numerous errors; (D) 2^nd PCR counsel was ineffective. Petitioner argues Respondents have failed to respond on these issues and relief should be granted. ((Reply, Doc. 23 at 9.)

However, Petitioner's challenges in issues (A), (B), and (C) were asserted as part of Petitioner's claim in Ground 4 that the state appellate courts wrongly denied Petitioner's 2^nd PCR petition, which Respondents have addressed by asserting the claim is not cognizable in this habeas proceeding. The challenge in issue (D) simply argues his counsel in the 2^nd PCR proceeding was ineffective, which is duplicative of Petitioner's claim in Ground 3, which Respondents have also addressed by arguing it is a non-cognizable claim.

EXPANSION OF THE RECORD

A. ARGUMENTS

First Motion to Expand - With his Reply, Petitioner filed a Motion to Expand the Record (Doc. 25) seeking to expand the record with 9 documents from the state court record, and the summary judgment filings (including exhibits) in Fuqua v. Butler, CV-07-8051-PCT-NVW, Docs. 83-84, 86) (to show his conditions of confinement during the 1^stPCR proceeding).

Respondents responded (Doc. 27), providing (as Exhibits III thru RRR) the first 8 documents. Respondents argue that the ninth record request, Grand Jury proceeding transcripts, cannot be produced because they are sealed under state law, and that Petitioner should request the state court to unseal them, that under Petitioner's theory the transcripts would show nothing more than incomplete testimony before the grand jury, rather than a conflict. Respondents further argue that these records were not before the PCR court and thus cannot be introduced now under 28 U.S.C. § 2254(e)(2). Further, they argue that the claim regarding conditions of confinement was raised by Petitioner in the PCR court, was denied, and Petitioner did not exhaust his state remedies on this claim by petition for review on that denial, and it is now procedurally defaulted. Regarding the tenth request, seeking records from Petitioner's civil rights claim regarding conditions of confinement, Respondents argue these records were not before the state courts and thus may not be considered under 28 U.S.C. § 2254(e)(2).

Petitioner did not reply.

Second Motion to Expand - On September 16, 2022, Petitioner filed a “2^nd Motion to Expand the Record” (Doc. 32.) Petitioner seeks to expand the record to include the following:

1. audio recordings from the investigation with Petitioner's voice, including two recordings introduced at trial, one not played, and the sentencing hearing;

2. the grand jury transcripts; and

3. the prosecution's disclosure, purportedly submitted as Respondents' Exhibit III (which contains a single page).

Petitioner argues that the state has waived any argument on sealing of the grand jury transcript, having already produced the transcript to defense counsel. He argues the transcript is relevant to his claim that he should have been given a preliminary hearing.

Respondents have responded (Doc. 33) arguing that only one of the three audio recordings was before the PCR court, and thus the other two are not admissible under 28 U.S.C. § 2254(e)(2), and therefore there is nothing for this court to use to compare voice recordings. Respondents argue that any unauthorized prior release of grand jury transcripts does not amount to a waiver of the state law sealing requirement, and in any event this Court is barred by § 2254(e)(2) from considering the transcript. Respondents argue that the summary record of the prosecution's disclosure was the only disclosure filed with the Court and therefore the only record that satisfies § 2254(e)(2), and therefore the actual disclosures cannot be considered by this Court. The summary of disclosures has been made a part of this proceeding as Exhibit II. Further, Respondents are not in possession of such disclosures, and Petitioner fails to establish the relevance of the disclosures to his claims.

Petitioner has not replied, and the deadline to do so expired on October 11, 2022.

B. PROFFERED EXHIBITS

Petition Exhibits - In addition to the records for which Petitioner has explicitly sough an expansion, Petitioner submitted with his Amended Petition a series of exhibits (P1-P6, P11-12), without any showing that they were part of the state court record.

Although Petitioner's index of exhibits (Doc. 13-1 at 1) identified an additional five exhibits (P7, P8, P9, P10.1, and P10.2), three are records from this case, and have been provided by Respondents, including: Exh. P9 (Notice of Completion) (see Exh. EEE, Doc. 22-1 at 116); P10.1 (Minute Entry Show Cause) (see Exh. EEE, Doc. 22-1 at 114), and Exh. P10.2 (Supplemental PCR) (see Exh. W). The other two, Exh. P7 (Petitioner's Legal Notes) and P8 (Inmate Letter Responses, Legal Call Request), are attached to Petitioner's Reply (Doc. 13) as Exhibits R10 and R13, respectively. These latter two are addressed hereinafter with regard to the Reply exhibits.

Of the remaining exhibits, Exhibit P5.1 is the same as Exhibit E (Trial exhibit 35). The undersigned finds nothing to show the remainder of the Petition exhibits were before the state courts.

Reply Exhibits - Petitioner has also attached to his Reply a variety of exhibits without any showing that they were a part of the state court records, i.e. Exhibits R1-R5, R8-R13, R18-R19. The only such exhibit which appears to have been prepared in the course of the prosecution was the State's Disclosure (Exh. R-19), which is the same records Petitioner sought in his Second Motion to Expand.

Records Still at Issue - Based on the foregoing, the following records remain at issue from the motions to expand: (1) the grand jury transcripts; (2) the civil rights case records regarding conditions of confinement; (3) audio recordings; and (4) the prosecution's disclosure. In addition, the following records from the Petition and Reply remain at issue: Exhibits P1-P4, P5.2-P6, P11-P12, R1-R5, R8-R13, and R18-R19.

C. CONSIDERATION

1. Irrelevant Records

This Court need not consider records which are irrelevant to a claim or defense before it.

Grand Jury Transcripts - Petitioner argues the grand jury transcripts are relevant to his claim in Ground 1C that trial counsel was ineffective for failing to pursue a preliminary hearing. As discussed hereinafter, the undersigned concludes that Ground 1C must be dismissed as procedurally defaulted, and that it is under the applicable law it was legally futile, and therefore not a substantial claim. Accordingly, these records are not relevant to a claim to be considered by this Court.

Civil Rights Case - Petitioner argues his civil rights case briefs are relevant to his claim in Ground 1B regarding trial counsel's ineffectiveness regarding his conditions of confinement. As discussed hereinafter, the undersigned concludes that Ground 1B must dismissed as procedurally defaulted. Accordingly, these records are not relevant to a claim to be considered by this Court.

Audio Recordings - Petitioner argues the audio recordings will establish that the prosecution falsified evidence. Petitioner fails to connect this to any claim raised in the Amended Petition. Accordingly, these records are not relevant to a claim to be considered by this Court.

Prosecution's Disclosures - Respondents submitted as Exhibit III the State's disclosure statement, consisting of an itemization of witnesses and various exhibits, statements by defendant, experts, and various physical evidence to be used at trial. That disclosure was filed with the trial court pursuant to Arizona Rules of Criminal Procedure 15.1. (See also Exh. HHH, Trial Docket at item 4.) That Rule does not provide for the filing of any disclosed information, but rather directs that various information and records, etc. be disclosed, provided, or made available to the defendant. Thus, the disclosed information and exhibits are not ordinarily filed with the court as part of the disclosures, and the disclosure statement functions as a notice of service. Cf. Ariz. R. Crim. Proc. 15.4(f) (affirmatively prohibiting filing of disclosed materials, and even notices of service, in misdemeanor and petty offense cases). Petitioner proffers nothing to show that the actual disclosures were filed with or otherwise made available to the court.

Petitioner argues that production of the prosecution's actual disclosures would allow him to have this Court read the police reports and to compare color photos and black and white copies. (The copy of the disclosures provided by Petitioner in Exhibit R-19 includes only black and white photos, albeit with color notations.) Petitioner fails to explain how these records are relevant to a claim or issue before this Court. To the extent that Petitioner proffers them to support a claim of actual innocence, they are addressed hereinafter in Section III(B)(7).

Petition and Reply Exhibits - With the exception of the prosecution disclosures in Exhibit R-19 (addressed hereinabove), the undersigned assumes arguendo in Petitioner's favor that the remaining exhibits to the Amended Petition and the Reply are relevant.

2. Limited to Records in State Case

The habeas statutes for state prisoners provide limits upon the consideration of evidence not presented to the state courts:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant 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). Even though this provision only refers to an evidentiary hearing, it has been held to preclude the introduction of new evidence by other means, e.g. declarations, exhibits, etc. Holland v. Jackson, 542 U.S. 649, 653 (2004). “A contrary reading would [countenance] an end-run around the statute.” Shinn v. Ramirez, 142 S.Ct. 1718, 1738 (2022).

Prerequisite to the application of this limitation is that the petitioner must have “failed to develop the factual basis of a claim in State court proceedings.” “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). The petitioner ordinarily bears responsibility for the actions of his counsel, which are “attributed to the prisoner,” even if counsel is negligent. Shinn v. Ramirez, 142 S.Ct. 1718, 1734 (2022). An exception applies, however, if counsel's failure amounted to constitutionally ineffective assistance.

[A] prisoner “bears the risk in federal habeas for all attorney errors made in the course of the representation,” unless counsel provides “constitutionally ineffective” assistance.

Id. at 1735 (citations omitted).

The limitation of § 2254(e)(2) applies over and above the requirements for exhaustion of state remedies. Ramirez, 142 S.Ct. at 1733-34. Thus, even if state PCR counsel's ineffectiveness (which is of itself not a constitutional violation) can excuse a procedural default, that same “ineffectiveness” does not avoid a finding that the petitioner failed to develop the record.

The undersigned finds Petitioner did not submit the four remaining additional records sought in his Motions to Expand, nor Exhibits P1-P4, P5.2-P6, P11-P12, R1-R5, R8-R13, and R18-R19 to the state courts, nor does anything appear from the record that shows he made any effort to do so, let alone that he was diligent in attempting to do so. To the extent that such failing could be the fault (or even the ineffectiveness) of PCR counsel, Ramirez nonetheless attributes that failure to Petitioner.

Because Petitioner failed to develop the state court record, he may present this new evidence only if he meets the requirements in § 2254(e)(2). Petitioner makes no showing that his claim is new within the meaning of subsection (A) (i.e. that it relies on a new rule of constitutional law, or a factual predicate not previously discoverable). Nor does he make a showing under subsection (B) that the underlying facts are clear and convincing evidence he could not have been found guilty, as discussed more fully in connection with the discussion of actual innocence to avoid procedural defaults.

Accordingly, none of this additional evidence can be considered in this habeas proceeding to support Petitioner's claims for relief.

3. Use of Records to Resolve Procedural Defenses

On the other hand, this Court is not precluded from relying on these records to address Petitioner's assertions of cause and prejudice or actual innocence to avoid his procedural defaults. Even so, this Court may consider whether the record limitations under 28 U.S.C. § 2254(e)(2) mean that “the newly developed evidence never would ‘entitle [the prisoner] to federal habeas relief.'” Ramirez, 142 S.Ct. at 1739.

For the reasons discussed hereinafter, the undersigned finds none of these records relevant and sufficient to support Petitioner's claims of cause to excuse his procedural defaults and bars, or to show his actual innocence.

D. CONCLUSION RE MOTIONS

The undersigned has concluded that the records remaining at issue in the motions to expand are not relevant to a claim in the case. For the reasons discussed hereinafter with regard to Petitioner's assertions of cause and prejudice and actual innocence, the undersigned also concludes that none of them are necessary to resolve those issues. Accordingly, the motions to expand the record should be denied.

III. APPLICATION OF LAW TO FACTS

A. NONCOGNIZABLE CLAIMS RELATED TO PCR

Grounds 2, 3 and 4 all assert constitutional violations in Petitioner's PCR proceedings. Ground 2 asserts ineffective assistance of counsel in the first PCR. Ground 3 asserts ineffective assistance of counsel in his second PCR. And Ground 4 asserts error by the appellate courts in denying his second PCR petition.

Respondents argue that Grounds 2 and 3 are not cognizable because there is no constitutional right to counsel in state post-conviction relief proceedings, and relief on the basis of such ineffectiveness is barred by 28 U.S.C. § 2254(d)(i). Respondents argue that Ground 4 merely asserts state law errors in his PCR proceedings, and thus does not state a cognizable claim for violation of federal law. Respondents further argue that even if those errors would amount to a violation of due process, because they occurred in the context of a PCR proceeding, such claim is not cognizable. (Answer, Doc. 20 at 6-8.)

Petitioner replies that Grounds 2 and 3 are cognizable because Martinez v. Ryan 566 U.S. 1 (2012), and Detrich v. Ryan, 740 F.3d 1237 (9^th Cir. 2013) found a constitutional right of effective assistance of PCR counsel in a first PCR petition asserting ineffective assistance of counsel. Petitioner argues Ground 4 is cognizable because: (a) the errors asserted resulted in a violation of his constitutional rights, which applied because he had right to effective assistance of his appointed counsel in both PCR proceedings; (b) he was constructively denied counsel, within the meaning of U.S. v. Cronic, 466 U.S. 648 (1984), at trial. (Reply, Doc. 23 at 1-3.)

No Constitutional Right to Effective PCR Counsel - Contrary to Petitioner's contention, neither Martinez nor Detrich recognized a constitutional right to counsel in PCR proceedings. The Supreme Court has long rejected a constitutional right to counsel in PCR proceedings. “There is no constitutional right to an attorney in state postconviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted).

In Martinez, this Court recognized a “narrow exception” to the rule that attorney error cannot establish cause to excuse a procedural default unless it violates the Constitution. 566 U.S., at 9, 132 S.Ct. 1309. There, the Court held that ineffective assistance of state postconviction counsel may constitute “cause” to forgive procedural default of a trial-ineffective-assistance claim, but only if the State requires prisoners to raise such claims for the first time during state collateral proceedings.

Shinn v. Ramirez, 142 S.Ct. 1718, 1733 (2022). However, Martinez “did not announce a new rule of constitutional law,” Buenrostro v. United States, 697 F.3d 1137, 1139 (9th Cir. 2012), but rather explicitly declined to “resolve” “whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9, 8.⁴

4 The undersigned has found a constitutional right to counsel in an Arizona of-right first PCR petition by a defendant who pled guilty. See Pacheco v. Ryan, CV-15-2264-PHX-DGC-JFM, 2016 WL 7423410, at *29 (D. Ariz. Sept. 23, 2016), report and recommendation adopted, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016). However, Petitioner did not plead guilty, but rather proceeded to trial.

The Ninth Circuit has explicitly declined to find a general constitutional right to counsel in a PCR proceeding. In Hunton v. Sinclair, 732 F.3d 1124 (9^th Cir. 2013), the Ninth Circuit recognized the apparent incongruity left between the Coleman constitutional ruling and the Martinez procedural ruling, but declined to decide what the Supreme Court did not.

The Court made it plain that the exception extended no further... If Coleman's revetment is to be torn down, it is not for us to do it.

Hunton. 732 F.3d at 1126. Similarly, Detrich found no such claim, but rather only applied the procedural default exception found in Martinez. Detrich, 740 F.3d at 1244.

Petitioner protests that state provided him PCR counsel, and therefore is responsible if that counsel was ineffective. The argument is without merit. “The fact that counsel in a collateral proceeding is appointed by the court does not change the rule that petitioner is not entitled to effective assistance of counsel in those proceedings.” Poland v. Stewart, 169 F.3d 573, 588 (9th Cir. 1999).

Accordingly, Petitioner fails to state a claim of the violation of federal law in Grounds 2 and 3.

Habeas Not Available for State Law Violations - Petitioner's Ground 4 relies on a series of purported errors by the Arizona Court of Appeals and the Arizona Supreme Court in rejecting Petitioner's petitions for review in his second PCR proceeding.

A state court determination of state law is not subject to review in a federal habeas court. Bains v. Cambra, 204 F.3d 964, 971 (9th Cir. 2000) ("federal court is bound by the state court's interpretations of state law"). A federal court may not second-guess the state court's construction of its own state law unless “it appears that its interpretation is an obvious subterfuge to evade consideration of a federal issue.” Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994) (citing Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). See e.g. Goldyn v. Hayes, 444 F.3d 1062 (9th Cir. 2006) (although Nevada court was final arbiter of elements of crime, it could not “define an element out of existence, or to ignore the element entirely when upholding a criminal conviction,” without violating federal law by allowing conviction without proof beyond a reasonable doubt). But here, Petitioner fails to offer anything to suggest that the state appellate courts were attempting to evade compliance with the U.S. Constitution. At most, he asserts such conduct by “the Navajo Co. Superior Court Clerk, Presiding Judge, Prosecuting Attorney's Office, his own APPOINTED counsel and the Arizona Department of Corrections.” (Reply, Doc. 23 at 2.)

To the extent Petitioner relies on his contention that he had a federal constitutional right to effective assistance of counsel in his PCR proceeding to show a subterfuge by the state appellate courts, his mistake of law in making that contention is fatal to the claim. Neither the PCR court nor the appellate courts could have been engaging in subterfuge to deny him his federal right to effective PCR counsel, because he had no such right.

Due Process Violation in PCR Not Cognizable - Petitioner does not otherwise identify the nature of federal law violation he envisions from the appellate court's purported state law violations. Nonetheless, this Court is required to liberally construe his pro se Petition, applying whatever law or legal theory that is fairly suggested by the facts alleged and not contrary to the theories actually advanced. Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003); Blaisdell v. Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Dluhos v. Strasberg, 321 F.3d 365, 373 (3rd Cir. 2003).

It is true that an error of state law may be “sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment.” Pully v. Harris, 465 U.S. 37, 41 (1984). To sustain such a due process claim founded on state law error, a habeas petitioner must show that the state court "error" was "so arbitrary and fundamentally unfair that it violated federal due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986)).

Even so, the “denial of due process in a state PCR proceeding is not a basis for habeas relief.” Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (noting circuit split).

Summary - Petitioner's claims in Grounds 2, 3, and 4 all depend on a non-existent constitutional right to counsel in a state PCR Proceeding, or a non-existent right to due process in a state PCR proceeding. Accordingly, they fail to present a cognizable claim for habeas relief, and must be dismissed with prejudice.

B. PROCEDURAL DEFAULT OF GROUNDS 1B, 1C, 1D AND 1E

Respondents argue that Grounds 1B, 1C, 1D, and 1E are either procedurally defaulted or were procedurally barred on an independent and adequate state ground, and thus are barred from federal habeas review.⁵

5 Respondents utilize terminology from Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010), where a panel of the Ninth Circuit denominated an expected future application of a procedural bar as an “implied procedural bar,” and an actually applied procedural bar as “explicit.” Because habeas courts are sometimes called upon to imply an explicit procedural bar from a summary state court decision, see Hunter v. Aispuro, 982 F.2d 344 (9th Cir. 1992) and Wilson v. Sellers, 138 S.Ct. 1188 (2018), and because a procedural default involves a forecast of a state court's future decision, rather an implication about a past decision, the undersigned maintains the separate nomenclature of procedural default and procedural bar. The principles, however, are the same.

Petitioner does not argue these claims were properly exhausted, but argues that: (a) he has shown cause and prejudice based on PCR counsel's failure to raise his claims; and (b) his actual innocence. (Reply, Doc. 23 at 4-6.)

1. Exhaustion Requirement

Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement 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).⁶

6 A petitioner's state remedies are also exhausted where the highest state court has actually reached and passed on the merits of the claim, regardless of whether the petitioner fairly presented the claim to the state court. Castille v. Peoples, 489 U.S. 346, 351 (1989).

2. Procedural Default

Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents rely upon Arizona's waiver and preclusion bars, set out in Ariz. R. Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer, Doc. 20 at 11-12, 15.)

Remedies by Direct Appeal - Under Ariz.R.Crim.P. 31.3, the time for filing a direct appeal expires twenty days after entry of the judgment and sentence. Moreover, no provision is made for a successive direct appeal. Accordingly, direct appeal is no longer available for review of Petitioner's unexhausted claims.

Remedies by Post-Conviction Relief - Under Arizona's preclusion, waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.

Preclusion Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not be brought in a petition for post-conviction relief if the claim was “[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(2).⁷

7 Of course, if the prior proceeding in which the claim was adjudicated on the merits was the highest state court, then the prior proceeding resulted in exhaustion, and the subsequent application of a waiver bar would not preclude habeas review.

Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel).

For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Petitioner raises none of these claims. Claims based upon ineffective assistance of counsel are determined by looking at “the nature of the right allegedly affected by counsel's ineffective performance. Id. Here, none of Petitioner's defaulted/barred claims of ineffective assistance have at their core the kinds of claims identified as requiring a personal waiver.

Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. Ariz.R.Crim.P. 32.4 requires that petitions for post-conviction relief (other than those which are “of-right”) be filed “within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition, and noting that first petition of pleading defendant deemed direct appeal for purposes of the rule). That time has long since passed.

Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. Nor does it appear that such exceptions would apply. Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Where a claim is based on "newly discovered evidence" that has previously been presented to the state courts, the evidence is no longer "newly discovered" and paragraph (e) has no application. Here, Petitioner has long ago asserted the facts underlying his claims. Paragraph (f) has no application where the defendant, like Petitioner, filed a timely notice of post-conviction relief. Paragraph (g) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no application to the procedural claims Petitioner asserts in claims for relief in this proceeding.

Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court. Thus, Petitioner's claims that were not fairly presented are all now procedurally defaulted.

3. Procedural Bar on Independent and Adequate State Grounds

Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011).

In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.

Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.

Id. at 584-585.

4. Cause and Prejudice

If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:

... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by

officials", made compliance impracticable, would constitute cause under this standard.

Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).

While both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991).

5. Application to Petitioner's Claims

a. Ground 1B - IAC re Conditions of Confinement

In Ground 1B of his Petition, Petitioner argues that trial counsel was ineffective for not objecting to the “the unconstitutional Conditions of Confinement [under which] Petitioner was held while waiting for trial which severely arrested his ability to defend himself and to be mentally prepared to face his trial.” (Amend. Pet., Doc. 13 at 5.)

Petitioner raised this claim in his first PCR proceeding, but the PCR court rejected it on the merits, finding the conditions “did not interfere with the defendant's ability to adequately communicate with his attorney in this case nor deny him the ability to adequately prepare his defense against the charges in this case,” and that the conditions were properly imposed in light of complaints and allegations against him during his detention, including the conspiracy to murder an informant. (Exh. OO, Order 1/18/11 at 2-3.) This was the first step towards proper exhaustion. However, Petitioner did not challenge that denial by filing a petition for review to the Arizona Court of Appeals, nor even by raising it in his Response (Exh. QQ) to the state's Petition for Review.

Respondents argue this resulted in a procedural default because Petitioner can no longer seek review in that PCR proceeding under Ariz. R. Crim. Proc. 32.16(a)(2) (15 days after petition for review to file cross-petition for review), and is now barred by Arizona's preclusion rule, Rule 32.2(b), from raising it in a new PCR proceeding. (Answer, Doc. 20 at 14-15.)

Not Properly Exhausted - Indeed, in cases not carrying the death penalty, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005); Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007). Thus this claim was not properly exhausted.

Procedurally Defaulted - Moreover, it is now procedurally defaulted under Arizona's Rules 32.16(a)(2) and 32.2(b), and Petitioner proffers nothing to show that these procedural bars would not apply, nor that they are not independent and adequate to bar federal habeas review. Accordingly, Ground 1B was procedurally defaulted.

No Cause to Excuse - Petitioner argues that his failure to properly exhaust his state remedies on this claim was caused by ineffective assistance of PCR counsel in failing to adequately argue the claim, citing Martinez v. Ryan. (Reply, Doc. 23 at 3.) However, as discussed hereinabove regarding Petitioner's non-cognizable claims, Martinez only recognized ineffective assistance of PCR counsel in the PCR court as cause to excuse a procedural default. Any failing by PCR counsel to adequately argue this claim to the PCR court did not cause Petitioner's procedural default. Rather, it was PCR counsel's failure to seek further review in the Arizona Court of Appeals by filing a cross-petition for review. Martinez's exception to the Coleman rule on ineffectiveness in PCR proceedings does not cover such ineffectiveness:

The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initialreview collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initialreview collateral proceeding may be deficient for other reasons.

Martinez, 566 U.S. at 16 (citations omitted).

b. Ground 1C - IAC re Preliminary Hearing

Procedurally Defaulted - In Ground 1C, Petitioner argues that trial counsel was ineffective for failing to object to a “Due Process violation of denial of a preliminary hearing.” (Amend. Pet., Doc. 13 at 5.) Petitioner argues that under state law, because his case was commenced by a complaint, he had a right to a preliminary hearing, and the denial of it allowed the prosecution to proceed without him having the opportunity to challenge the evidence, and to preserve evidence.

Respondents argue that this claim was not raised in either of Petitioner's PCR proceedings, thus it was not properly exhausted and is now procedurally defaulted under Arizona's waiver and timeliness bars. (Ans, Doc. 20 at 15.) The undersigned agrees.

Cause under Martinez - Petitioner does not challenge the assertion of procedural default, but replies that the ineffective assistance of counsel in his first and second PCR proceedings in failing to bring the claim establishes cause and prejudice to excuse his procedural default. (Reply, Doc. 23 at 4.)

Because (as discussed hereinabove) the Martinez exception applies only to ineffective assistance in a first PCR proceeding, this Court need not consider any ineffectiveness of counsel in the second PCR. Martinez, 566 U.S. at 16.

With regard to the first PCR, for Petitioner to rely upon Martinez, Petitioner must “demonstrate[e] two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9^th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318).⁸

8 In evaluating the ineffectiveness of PCR counsel (and as part thereof, the ineffectiveness of trial counsel), this habeas Court is not constrained by the limits on grants of habeas relief in 28 U.S.C. § 2254(d), i.e. state court decisions contrary to or unreasonable application of Supreme Court law, etc.. Cf. Martinez, 132 S.Ct. at 1320 (finding limits on habeas relief for ineffectiveness of PCR counsel not applicable to cause and prejudice determination). However, the constraints of 28 U.S.C. § 2254(e) do apply. Ramirez, 142 S.Ct. at 1738.

Not a Substantial Claim - Respondents argue Ground 1C is not a “substantial” claim, but is wholly without merit because the underlying objections are plainly without merit. In evaluating such claims, the undersigned looks to both federal and Arizona law, both of which were available to trial counsel as a basis to object.

Petitioner replies by arguing a right to be present at the grand jury hearing. (Reply, Doc. 23 at 4-5.)

No Valid Objection Under Federal Law - Federal law mandates in state prosecutions neither a preliminary hearing, Lem Woon v. State of Oregon, 229 U.S. 586, 590 (1913), nor a grand jury indictment, Hurtado v. California, 110 U.S. 516 (1884) (no right under Fifth Amendment) and Gerstein v. Pugh, 420 U.S. 103, 125 (1975) (no right under Fourth Amendment). At most, “[t]he Sixth Amendment guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense.. .|t] his guarantee is applicable to the states through the due process clause of the Fourteenth Amendment.” Gauttv. Lewis, 489 F.3d 993, 1002-03 (9th Cir. 2007). The Constitution does not required detailed presentations of the prosecution's case, but is satisfied if the charging document (or other means of notice) “states ‘the elements of an offense charged with sufficient clarity to apprise a defendant of what to defend against.'” Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985) (quoting Russell v. United States, 369 U.S. 749, 763-64 (1962)). Petitioner proffers nothing to suggest that the limited notice required by the Sixth Amendment was not satisfied by the Superseding Indictment (Exh. A). Thus, there was no objection for trial counsel to make under federal law.

No Valid Objection under State Law - The Arizona Constitution provides: “No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.” Ariz. Const. art. II, § 30. In addition to this constitutional requirement, the Arizona Rules of Criminal Procedure allow the initial commencement of a felony criminal prosecution by either: “(a) the return of an indictment under Rule 12 which may, but need not, be preceded by a complaint; or (b) filing a complaint in a limited jurisdiction court, or in superior court with permission of a judge of such court.” Ariz. R. Crim. Proc. 2.2. Those rules further provide that “[a] defendant has a right to a preliminary hearing if charged in a complaint with a felony” and that it ordinarily must be commenced “no later than 10 days after the defendant's initial appearance if the defendant is in custody.” Ariz. R. Crim. Proc. 5.1(a). An information must be filed within 10 days of the preliminary hearing or waiver thereof. Ariz. R. Crim. Proc. 13.2.

However, “[a]n intervening indictment arising from the same activity may supersede the filing of a prior complaint.” State v. Bojorquez, 111 Ariz. 549, 553, 535 P.2d 6, 10 (1975). Thus, to put it more simply, “[e]ither indictment by a grand jury or information after a preliminary hearing is a constitutionally proper method of bringing an accused felon to trial.” State v. Meeker, 143 Ariz. 256, 265, 693 P.2d 911, 920 (1984).

As an alternative to a preliminary hearing, the prosecution may establish probable cause by obtaining an indictment from a grand jury. A supervening indictment eliminates a defendant's right to a preliminary hearing on a prior complaint.

Segura v. Cunanan, 219 Ariz. 228, 234, 196 P.3d 831, 837 (Ct. App. 2008) (citations omitted).

Thus, Arizona law provides three paths to a felony prosecution: (a) indictment; (b) complaint, then indictment; (b) complaint, preliminary hearing (see Ariz. R. Crim. Proc. 4), and information (see Ariz. R. Crim. Proc. 13.1, 13.2). Under either the first (indictment) or second (complaint, indictment), a preliminary hearing is not required.

Here, Petitioner was properly prosecuted under alternative (b), complaint then indictment. Thus, Petitioner's reliance on Rule 5.1 is misplaced, and any right to a preliminary hearing evaporated upon his indictment by the Arizona grand jury.

Petitioner complains that had he been given a preliminary hearing he could have avoided prosecution and/or discovered evidence. This is irrelevant, given his lack of a right to a preliminary hearing.

Further, at least with regard to discovery, any such claim by counsel would have been futile.

The purpose of a preliminary examination is not to grant the defendant an opportunity for discovery but to determine probable cause to hold the defendant to answer. Any discovery that occurs at a preliminary hearing is incidental to that proceeding and is not a right of the defendant. Moreover, discovery is provided in that the transcript of the grand jury proceedings is made available to the defendant.

Bojorquez, 111 Ariz. at 553-54, 535 P.2d at 10-11.

The undersigned is not convinced that Petitioner would have been able to defeat the limited showing necessary at a preliminary hearing, i.e. probable cause to believe the defendant committed the offense. See Brailsford v. Foster, 242 Ariz. 77, 84, 393 P.3d 138, 145 (Ct. App. 2017). Nonetheless, the undersigned assumes arguendo (in Petitioner's favor) that he could have been successful. But regardless of any potential benefit from a preliminary hearing, Petitioner had no right to such a hearing.

Right to Be Present at Grand Jury Proceeding - Petitioner's argument that he had a right to be present before the grand jury is either irrelevant, or an unauthorized attempt to amend Petitioner's claim in Ground 1C.

Petitioner's claim in Ground 1C concerns his right to a preliminary hearing. Thus, any failure of PCR counsel to assert a claim of ineffectiveness with respect to the grand jury would be irrelevant to his failure to present a claim regarding a preliminary hearing. Ineffective assistance claims are not fungible, but must each be specifically argued. See Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982) (presentation of “additional facts of attorney incompetence” transformed claim into one not presented to state court); and Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (rejecting argument that presentation of any claim of ineffectiveness results in fair presentation of all claims of ineffective assistance).

Thus, this is an entirely new claim, and this Court “need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Moreover, the Court's scheduling Order, filed April 28, 2022 (Doc. 17) advised the parties that any motion to amend the petition was due within 28 days of the filing of the answer. No such motion was timely filed.

Conclusion - Any objection by trial counsel on the basis of a lack of a preliminary hearing would have plainly been futile. It is clear that the failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 679 F.3d 1150, 1157 (9^th Cir. 2012). “The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). Thus this claim of ineffective assistance was not substantial and PCR counsel's failure to raise it does not constitute cause under Martinez to excuse its procedural default.

c. Ground 1D - IAC re Multiple Charges

In Ground 1D of his Petition, Petitioner argues that trial counsel was ineffective for failing to “object to the Double Jeopardy issues inherent in the multiple drug counts and multiple gun counts through the Multiplicity and Duplicity standards. Petitioner should have only faced 2 of the 5 Counts surrounding drugs and 1 of the 8 Misconduct Involving Weapons (MIW) Counts.” (Amend. Pet. Doc. 13 at 6.)

Respondents argue, as with Ground 1C, that this claim was not raised in either of Petitioner's PCR proceedings, thus it was not properly exhausted and is now procedurally defaulted under Arizona's waiver and timeliness bars. (Ans, Doc. 20 at 15.)

Petitioner again replies without challenging the assertion of procedural default, but asserting the ineffective assistance of counsel in his first and second PCR proceedings as cause under Martinez. (Reply, Doc. 23 at 4.)

Respondents argue that the claim of ineffectiveness is not substantial because there was simply no Double Jeopardy violation, each of the charges being based on different events. (Ans. Doc. 20 at 18-20.)

Petitioner argues various cases finding a single offense when completed at the same time and place, with the same participants, and the same acts. But he also recognizes that his charges involved different times, and argues the multiple possessions are the same because he never possessed the items. (Reply, Doc. 23 at 5.)

Under federal law, a Double Jeopardy violation may occur where a court imposes unauthorized multiple punishments for an offense in the same proceeding. “A second punishment for the same offense violates the double jeopardy provision of the Fifth Amendment.” Smith v. U.S., 287 F.2d 270, 274 (9th Cir. 1961) (internal citations omitted). However, for double jeopardy purposes, a single act may constitute multiple offenses so long as each offense “requires proof of a different element.” Blockberger v. U.S., 284 U.S. 299, 304 (1932). “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id.

Arizona's double jeopardy law is no different. See State v. Cook, 185 Ariz. 358, 365, 916 P.2d 1074, 1081 (Ct. App. 1995) (discussing Arizona Constitution and Ariz. Rev. Stat. § 13-116).

Petitioner was convicted and sentenced on all the drug counts and all the weapons misconduct counts of the Indictment. Regarding the drug counts, the Indictment charged him with:

- Count 1, possession for sale of methamphetamine on August 18, 2005;

- Count 6, possession for sale of methamphetamine on August 24, 2005;

- Count 11, possession for sale of methamphetamine on September 4, 2005;

- Count 16, possession for sale of methamphetamine on September 14, 2005;

- Count 21, possession of methamphetamine in his shoe on September 14, 2005 (Exh. RRR, Present. Rep. at Attach. Indictment, Doc. 27-2 at 14).⁹

9 The prosecution withdrew the drug possession related charges in Count 17 (transportation for sale of methamphetamine on September 14, 2005 in Winslow Arizona) and Count 18 (possession of drug paraphernalia (packaging material) on September 14, 2005 in Winslow, Arizona).

With the exception of Counts 16 and 21, each of those charges involved acts on separate dates, and thus involved separate acts. Counts 16 and 21 occurred on the same date, but proof on Count 16 arose from the “two baggies containing 35.89 grams of methamphetamine in the duffel bag” found in the informant's car. (Exh. P, Mem. Dec. 9/4/08 at ¶ 4.) Count 21 dealt with the “small baggie containing 1.5 grams of methamphetamine that [Petitioner] had hidden between his toes,” discovered after his arrest. (Id.) Thus, each of Petitioner drug convictions stemmed from separate acts, and thus they pose no double jeopardy violation.

Petitioner asserts a common defense of innocence to these drug offenses, i.e. “drugs that he never had anything to do with in the first place” (Reply, Doc. 23 at 5). But Double Jeopardy is not concerned with defenses, but offenses.

Regarding the weapons charges, the Indictment charged Petitioner with a form of possession of the same guns, a Smith & Wesson .38 caliber revolver and a Tauras .357 caliber revolver:

- Count 2 - on August 18, 2005, possession in the course of the drug offense in Count 1;

- Count 3 - on August 18, 2005, possession as a prohibited possessor;

- Count 7 - on August 24, 2005, possession in the course of the drug offense in Count 6;

- Count 8 - on August 24, 2005, possession as a prohibited possessor;

- Count 12 - on September 4, 2005, possession in the course of the drug offense in Count 11;

- Count 13 - on September 4, 2005, possession as a prohibited possessor;

- Count 19 - on September 14, 2005, possession in the course of the drug offenses in Counts 16, 17 and 18;

- Count 20 - on September 14, 2005, possession as a prohibited possessor (Exh. RRR, Present. Rep. at Attach. Indictment, Doc. 27-2 at 14).

The possession in the course of a drug offense required proof of the related drug offense(s), and proof of possession of the weapon with intent or possible use of the weapon “to further” the drug offense(s). (Exh. J, Jury Instruct. 25, Doc. 20-5 at 57.) Conversely, the offense of prohibited possessor required proof of being a prohibited possessor at the time the weapons were possessed. (Id. at Instruct. 26, Doc. 20-5 at 58.) Thus, each of the offenses on separate dates were separate acts. The two charges on each date involved the same act (i..e. possessing the weapon at that time and place), but one required proof of the drug connection and the other required proof of Petitioner's prohibited possessor status. Under the Blockberger test, these disparate elements avoided any double jeopardy concerns.

Accordingly, any objection by trial counsel on the basis of double jeopardy would have been baseless and futile. Accordingly, Ground 1D does not constitute a “substantial” claim, and any ineffectiveness by PCR counsel in failing to raise the claim cannot be cause to excuse the procedural default of Ground 1D.

d. Ground 1E - IAC re Misstatements of Law

(1). Factual Background

The prosecution made a combined plea offer to Petitioner in the instant case and the conspiracy to commit murder case. If convicted at trial in both cases, Petitioner faced a likely effective life sentence, including (as presented at the settlement conference): 25 years on the murder conspiracy (Exh. B, R.T. 4/4/06 at 11); on the five methamphetamine charges (sales (3), possession for sale, and transportation charges), 15.75 to 35 years each (Id. at 12-13); on the eight weapons charges, 10 to 15 years consecutive each (Id. at 17).

The offer called for Petitioner to plead guilty to one count of possession for sale (with a sentence of 5-15 years) and a reduced charge of solicitation to commit murder (with a sentence of probation to 20 years), the sentences to be consecutive (Id. at 34-35), effectively a combined sentencing range of 5 to 35 years in prison. (Id. at 22-23.)

An unsuccessful settlement conference was conducted on April 4, 2006. (Exh. B, R.T. 4/4/06.) Petitioner ultimately did not except the offer, and was sentenced to an effective 19.75 years in the instant case (Exh. P, Mem. Dec. 9/4/08 at ¶ 6), and life with the possibility of parole after 25 years in the murder conspiracy case (Exh. SS, Mem. Dec. 2/14/13 in CR2005-0569 at ¶ 4), a combined minimum of 46.75 years in prison.

(2). Arguments

In Ground 1E of his Petition, Petitioner argues that trial counsel was ineffective for failing to inform him he had been incorrectly instructed by the settlement judge that his prior convictions would be admissible in this case, regardless whether he testified, because they were admissible with regard to the prohibited-possessor weapons charges. He further argues that the plea offers with the instant case and the related murder conspiracy case were presented jointly, and that the settlement court misrepresented that an overt act had to be proven for the conspiracy charge. He argues counsel should have sought to sever the plea offers. (Amend. Pet., Doc. 13 at 6.)

Respondents argue this claim was presented in Petitioner's second PCR petition, but found it was waived under Ariz. R. Crim. Proc. 32 for failure to raise it in his earlier PCR proceeding, and thus is procedurally barred from habeas review. (Answer, Doc. 20 at 15-16.) The undersigned agrees.

Petitioner again replies without challenging the assertion of procedural bar, but asserting the ineffective assistance of counsel in his first and second PCR proceedings as cause under Martinez. (Reply, Doc. 23 at 4.)

Respondents argue the claim with regard to the prior convictions is not substantive because the misstatement, if believed by Petitioner, would have increased his incentive to accept the plea agreements. Respondents agree that the settlement judge incorrectly asserted an overt act was required for conspiracy to commit murder, but argue that Petitioner cannot show prejudice because there were overt acts identified by the prosecution to meet that non-element, and thus Petitioner cannot show he relied on the misstatement to reject the plea offer. Rather, Petitioner's consistent defense was a lack of intent. Respondents further argue that Petitioner cannot show he would have accepted any plea, because he elected to proceed to trial despite facing up to 112 years in prison in this case alone, protesting that even 10 years in prison was more than he would accept without taking his chances at trial. Respondents further argue that Petitioner did not present any evidence to the state courts that he would have accepted the plea, and under Ramirez he cannot present new evidence on that point now.

Petitioner replies that Respondents cannot know what he would have done without the misstatements, adds that the misstatements were also prejudicial because the assertion regarding his prior convictions affected his decision to testify.¹⁰ He further argues that the packaged nature of the plea offers made the misstatement on the overt acts in the conspiracy case prejudicial in this case. He asserts the trial court “stated the overt act the State was alleging was a weak, overt act.”

10 Although stemming from the same statement by the settlement court, this is a substantially different claim from the one raised in the Petition. The existing claim focuses on the ineffectiveness of trial counsel in the midst of the settlement proceedings when Petitioner chose whether or not to accept the plea offer. This new claim focuses on trial counsel's failure to adequately advise Plaintiff on whether to testify, which covers events up to the time that Petitioner took the stand. Being raised the first time in the Reply, the new claim need not be considered. Zamani, 491 F.3d at 997.

(3). Ineffectiveness re Rejected Plea Offer

Petitioner contends counsel's ineffectiveness resulted in rejection of a favorable plea offer. “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. ... To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Missouri v. Frye, 566 U.S. 134, 147 (2012).

In evaluating such matters concerning pleas, courts do not rely on the defendant's post hoc, self-serving assertions as to what they would have done. Rather, the court must assess the circumstances surrounding the case to determine if the petitioner's allegation that he would have proceeded to trial is plausible. See United States v. Keller, 902 F.2d 1391, 1394-95 (9th Cir. 1990) (petitioner failed to show prejudice leading to guilty plea because he entered plea as alternative to long trial, possible conviction on more serious charges and a longer sentence; additional information about parole eligibility was unlikely to affect his decision). “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Lee v. United States, 137 S.Ct. 1958, 1967 (2017). See also State v. Donald, 198 Ariz. 406, 414, 10 P.3d 1193, 1201 (Ct. App. 2000).

Moreover, because Petitioner's claim would ultimately be constrained to the already developed state court record under 28 U.S.C. § 2254(e)(2) (as discussed hereinabove), under Ramirez this Court must evaluate the substantiality of the instant claim based solely on that record, without consideration of additional proffered evidence.

(4). Admissibility of Prior Convictions Advice

Petitioner proffers no reason why a correct statement of the law on the admissibility of his prior convictions would have convinced him to take the plea offer. According to Petitioner, counsel should have advised him that only the fact of a prior conviction could have been admitted to prove he was a prohibited possessor for the purpose of those weapons charges. But that would have improved Petitioner's prospects at trial, rather than worsening them.

Similarly, to the extent that Petitioner might have looked ahead to the potential for him testifying as a basis for rejecting the plea, the non-admissibility of such prior convictions could only be expected to increase the likelihood that Petitioner would have felt free to testify in his own behalf, and thus increased his belief in his ability to prevail at trial.

Indeed, Petitioner points to nothing in the contemporaneous record to suggest that proper advice on the admissibility of priors would have altered his calculous toward accepting the plea offer.

This portion of Petitioner's Ground 1E is not a substantial claim.

(5). Overt Acts Advice

Conversely, correcting the settlement judge's purported misstatement regarding the requirement for overt acts in the conspiracy case would have increased Petitioner's motivation to accept the plea offer.¹¹ The question here, of course, is whether there is contemporaneous evidence to show that this was enough to cause Petitioner to accept the combined plea offers.

11 The undersigned assumes arguendo, in Petitioner's favor, that the parties are correct in their assertions that proof of an overt act in support of the murder conspiracy was not a required element of the offense. See Ariz. Rev. Stat. § 13-1003(A) (“an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another”); Evanchyk v. Stewart, 202 Ariz. 476, 481, 47 P.3d 1114, 1119 (2002) (“a defendant may be convicted of conspiracy to commit first-degree murder even though there is no overt act and no murder occurs”).

At the settlement conference, the Court and Petitioner discussed the purported overt act requirement:

THE COURT: Conspiracy, as I'm sure you've been told, is an agreement between one -- between more than one person to commit a crime, and then someone does what's called an overt act in furtherance of that crime. So they've alleged here that you conspired with one or more persons that at least -- that would have resulted in the commission of a murder, and that someone took an overt act in regards to that. You don't have to have been the person who did the act if you were involved in the agreement. Okay. And, so, there was no murder here. We know that. But if there was an agreement to commit a murder and someone acted in furtherance of that, then, you have conspiracy. It's an interesting area of the law.

THE DEFENDANT: Can I say something?

THE COURT: Sure.

THE DEFENDANT: What -- what act was there?

THE COURT: Well, we'll let Mr. Ruechel [prosecutor] explain that to us here in just a minute.

THE DEFENDANT: All right.

THE COURT: Let me get done explaining the nature of the charge, and then he's going to -- he can answer that question for you.

Anyway, if a jury finds that you committed an overt act -- there was an agreement and there was an overt act, they can find you guilty-of conspiracy. If you're found guilty, it's a 25-year sentence. Okay?

* * *

THE DEFENDANT: But I still -- there was still no act towards that crime.

THE COURT: And, you know, the State may -- that may be a weakness in their case. I don't know. We'll have to see what they say about that.

(Exh. B, R.T. 4/4/06 at 7-10.) At this juncture, Petitioner had been advised an overt act was required, and when he intimated that there was no over tact, the court conceded that if not provided by the prosecution, it's absence might be a weakness in the prosecution's case.

The prosecution then made an offer of proof to show commission of the crime:

MR. RUECHEL: ...But Mr. Hall saying that Mr. Fuqua figured out that [KC] had snitched him off, and that he was still trying to get [KC] to bond him out and had told [the jailhouse informant, GH] - [GH] told him that he was getting out of jail shortly, and that he wanted [GH] to kill [KC], and that [GH] could do it himself or wait until Mr. Fuqua got out. And there was further discussion that she had to die.

And Mr. Fuqua -- then in furtherance of this overt act, Mr. Fuqua went ahead and drew maps up showing where [KC] lived; drew maps up of where she worked; provided phone numbers to [GH], work and home, for him to get in contact with her. And Mr. Fuqua actually made subsequent calls to [KC] indicating that -- and we have copies of those tapes. And there's nothing really damaging from the standpoint of him admitting to anything, but our theory is that he was calling her and saying, "Hey, can you believe it, they're saying maybe you're the one that snitched me off?" And [KC] had been told by the task force to act dumb if she had talked to Mr. Fuqua, because she had indicated that Mr. Fuqua had called her previously from jail. So she took the call and said, "Yeah, I can't believe that." And he was still talking to [KC] about trying to get money -- for her to get money for him to bail him out. And my understanding was perhaps the plan would have been, then, to have [GH] go and meet with her to get the money for the bail, which would allow him to have contact with her where he could kill her.

There's also discussion from Mr. Fuqua, supposedly, of an individual who could perhaps provide a firearm, a rifle to [GH] to do the killing. And in return, then, of [GH] killing [KC], Mr. Fuqua would do somebody or kill someone for [GH] who [GH] was not happy about because that person helped -- or he felt that maybe had been responsible for him being put in jail.

After this interview with [GH], they sent him back in with a tape recording for an hour or so. And according to the reports, the officer indicates that it can be heard that Mr. Fuqua did talk about how [KC] had to die. Mr. Fuqua told [GH] that he can -- he can take care of it before he gets out -- before Mr. Fuqua gets out, [GH] can do the killing, or wait until Mr. Fuqua gets out. Mr. Fuqua told [GH] that when it happens, he, Mr. Fuqua, should not be around. So what he planned to do was to be at a casino with his girlfriend, his old lady, and he would try to cause a scene at the casino so the cameras would be on him, so that there would proof that they saw him at the casino; and, therefore, when the killing took place, he would not be a suspect, as he would have an alibi. Mr. Fuqua again explained to [GH] about how to get to [KC]'s work, which was the Minnetonka Bar. Mr. Fuqua can be heard saying, "She's going to die. She's dead. She's blankety dead." And, again, talked about a person who could get Mr.

Hall a gun to take care of [KC]. Mr. Fuqua tells [GH] to get the money from [KC] before he does anything else; the money to bond him out, I assume, and so on.

So there's overt acts.

(Id. at 19-20.) Thus the prosecution had identified to Petitioner the following overt acts: (1) preparation of two maps to get to the victim; (2) provision of phone numbers for the victim; (3) contacting the intended victim to arrange a meeting between her and the hitman; (4) assisting with the hitman obtaining a rifle to commit the murder; (5) offering to pay back the hitman by killing someone for him; (6) agreeing on an alibi plan; and (7) providing explanation of how to get to the victim's work. See e.g. State v. Gortarez, 141 Ariz. 254, 260, 686 P.2d 1224, 1230 (1984) (finding sufficient evidence of overt act in support of conspiracy to distribute heroin from conversations in the course of the conspiracy between defendant and co-conspirator arranging a delivery of heroin).

Petitioner clearly entered the settlement conference attuned to the potential for a defense of no-overt acts. But Petitioner points to no contemporaneous evidence in the record to suggest that by the close of the settlement conference he believed he had a defense to these overt acts that would have avoided a conviction on the murder conspiracy.

While every element requiring proof offers some potential for a defense verdict (e.g. from prosecution failures at trial, juror confusion, etc.), Petitioner points to no contemporaneous evidence to suggest that such opportunities would have been deemed sufficient to shift his decision making.

To the contrary, Petitioner's decision making, as revealed at the settlement conference, was dichotomous: prison or freedom.

THE DEFENDANT: I feel -- well, I don't know where to start. Pretty much, if I go back to prison, I'm screwed. I've got my girlfriend right now, job opportunities, and everything else. Mistakes were made, this and that. Prison is not for everybody. I've been doing prison you know, juvenile, you know, when they go into prison when. I was younger; been there, done that. It holds nothing for me. The fact of the matter is, I go back to prison, what am I going to have when I come back out, whether it be ten years, 15 or 20 or 70. It really doesn't matter to me. If I go back in, I feel like I might as well go for the rest. I don't care, as far as that goes. I don't want to try to give anybody the assumption that I don't care about going back to prison, because I don't want to go. The fact is, I've got more opportunities now than I'll ever have when I come back out, as far as that goes.

(Exh. B, R.T. 4/4/06 at 28.) Petitioner maintained that view despite advice to the contrary from the settlement judge.

THE COURT: ...So I would ask you, you know, when you think about what to do, don't let yourself have that fatalistic attitude that, you know, well, if I go to prison, my life is over. Because I can guarantee you, if you take the deal and you got ten, and you go to trial and you get 50, at ten years when you could be walking out and you're staring at 40 more, I know that you would be kicking yourself. So don't allow yourself to get fatalistic like that. That's just not healthy.

THE DEFENDANT: It's not that, Your Honor. It's the hardest thing I ever had to do was come out of prison and get back used to society - -

THE COURT: I don't -- and here's one thing I'd like you -

THE DEFENDANT: -- with nothing.

THE COURT: also to consider. You talk about prison is not for you, and it really isn't for you. In large measure, prison is for society. It's not really for you. It's for you to be punished.

(Id. at 33-34.)

THE COURT: . Mr. Ruechel, it sounds like he's -- he's taken away from your potential risk two drug sales. And all of those other charges, misconduct involving weapons, may have to be consecutive. So he's eliminated a whole lot of exposure for you, dropped the conspiracy down two levels to solicitation.

THE DEFENDANT: I understand that, Y-our Honor. I'm looking at when I come out, I'm not going to have nothing. And everything that I have going for me right now, I'm going to lose.

(Id. at 42.)

Petitioner's commitment to trial was so strong that even when it was suggested that the prosecution might agree to make any sentences concurrent, Petitioner was not persuaded.

THE COURT: Anyway, Mr. Fuqua, how does this deal -- let's assume -- Mr. Ruechel is not making the offer today, but if he were to make it concurrent, how would you feel about that?

THE DEFENDANT: I'd have to think about it, Your Honor. I don't see it happening.

(Id. at 39-40.)

Further, Petitioner asserted plausible (if not ultimately successful) defenses to most of the charges in the instant case and to the murder conspiracy. On the instant case, Petitioner argued that the audio tapes of drug transactions were poor quality, KC brought the guns to Petitioner, KC's lack of credibility given her own criminal history. (Id. at 30-31, 36.) Indeed, Petitioner opined on his evaluation of his prospects at trial:

THE COURT: ... So, you know, your chances of winning the drug charges are probably not real good is what I'm trying to say to you. I've been around. I've seen the task force. I've seen how they work. I see how they present themselves at trial. You know, it comes across pretty good. And your whole case would probably depend on your lawyer's ability to tear down Kelly Conklin and make her look like she can't be believed.

THE DEFENDANT: That shouldn't be hard.

(Id. at 37.)

On the murder conspiracy, he argued that he was simply playing along with GH's expected efforts to entrap him into the conspiracy to get himself out of jail, and that Petitioner was doing so to get GH to help him post bond so Petitioner could get out of jail (and thus was telling GH to wait until Petitioner was released), and thus had no intent for the murder of KC. (Id. at 31-32.) Indeed, Petitioner purported to have “two witnesses that I told before the tape even happened that all's I want to do was to bond out.” (Id. at 39.)

Given Petitioner's preference to take his chances at trial rather than to accept any prison term, his beliefs regarding his possible defenses to all the charges (other than overt acts), and his lack of a plausible defense to the purported overt acts element, leads the undersigned to conclude that (based on the evidence of record) Petitioner has not demonstrated any ability to show a reasonable probability that he would have accepted a plea if he had been properly advised on the plea.

(6). Conclusion

Petitioner fails to make a plausible showing of prejudice based on the record with respect to either the prior convictions advice or the overt acts advice. Accordingly, these claims are not substantial, and Petitioner's procedural default of them cannot be excused under Martinez.

6. Summary Re Exhaustion Defenses

Based upon the foregoing, the undersigned concludes that Petitioner procedurally defaulted his state remedies on Grounds 1B, 1C, and 1D, and that Ground 1E was procedurally barred on an independent and adequate state ground, and that Petitioner has failed to show cause and prejudice to excuse such procedural default.

7. Actual Innocence

The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although not explicitly limited to actual innocence claims, the Supreme Court has not yet recognized a "miscarriage of justice" exception to exhaustion outside of actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).

Here, Petitioner asserts he has consistently claimed his actual innocence. (Reply, Doc. 23 at 4.) However, Petitioner presents no new reliable evidence of his actual innocence.

A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. This standard is referred to as the “Schlup gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002).

Moreover, to pass through the Schlup gateway, not just any evidence of innocence will do; the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324.

Petitioner seeks to introduce the grand jury transcripts ¹² but fails to suggest any new reliable evidence of his innocence to be found in them. Rather he asserts the transcripts would counter testimony at trial about his placing the duffle bag of drugs, etc. in KC's car, especially when coupled with photographs and reports purportedly showing the arresting officers could not have seen him place the duffle bag. (Mot. Expand, Doc. 25 at 1-2.) But showing the inability of the witnesses to observe the place of the duffle bag does not establish actual innocence - - it does not show Petitioner did not place the bag. If the officers could not see, they simply had no credible evidence to give on this point. At best, it would establish only that the prosecution presented insufficient evidence that he did place it. A finding of procedural "actual innocence" is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence).

12 Petitioner argues at length in his reply about the purported benefits of a preliminary hearing, e.g. getting to hear the drug call tapes, to see color photographs, and to cross examine witnesses. (Reply, Doc. 23 at 5.) But he fails to show how any of this would be revealed through the grand jury transcripts.

Nor does Petitioner provide anything to counter Respondents' contention that the transcripts would, at best, reveal incomplete testimony when compared to trial testimony (not surprisingly given the probable cause standard applied by a grand jury). Such weak impeachment would not preclude a reasonable juror from believing the trial testimony.

Petitioner seeks to admit his conditions-of-confinement civil suit records, but fails to explain how they would show his actual innocence. Indeed, they can only relate to events after the events of the crime.

Petitioner seeks to introduce the prosecution's disclosures but fails to explain how they establish his actual innocence. He simply argues they would provide him color copies of photos and contradict testimony that bloody rags were sent to the crime lab. (Mot. Expand, Doc. 25 at 2.) He makes no explanation of the significance of the color photos. With regard to the bloody tissues, Petitioner proffers nothing to show that they affirmatively show his innocence. Even if another person's blood were found on such tissues, that would not show Petitioner's actual innocence. For example, there is no suggestion that the prosecution's case rested on a showing that the duffle bag had only been in Petitioner's possession. Moreover, he leaves this Court to speculate whose blood would have been found on the tissues. Habeas petitioners may not “use federal discovery for fishing expeditions to investigate mere speculation.” Calderon v. U.S. Dist. Court, 98 F.3d 1102, 1106 (9th Cir. 1996) (citation omitted).

Petitioner seeks to introduce the drug call audio tapes. But Petitioner fails to show what new reliable evidence of his actual innocence exists in them. At best he suggests that this Court might, in its independent judgment, conclude that it was not his voice on one or more of the tapes. (2^nd Mot. Expand, Doc. 32 at 1.) But he offers nothing to suggest that no reasonable juror could conclude to the contrary.

In sum, Petitioner fails to make a showing based on new reliable evidence that no reasonable juror would have found him guilty. Accordingly his procedurally defaulted and procedurally barred claims in Grounds 1B, 1C, 1D, and 1E must be dismissed with prejudice.

C. MERITS 1A - INEFFECTIVE RE INVESTIGATION

In Ground 1A, Petitioner asserts trial counsel was ineffective in his handling of the following defense matters: (1) the jail video; (2) search of residence; (3) witness interviews; (4) bloody tissue; (5) DNA results; (6) Autozone purchases; (7) Petitioner's testimony; (8) diagrams; (9) Petitioner's mother; and (10) voice recordings.

Respondents concede the exhaustion of these claims, but argue that the state court's rejection of them on the merits survives deferential review under 28 U.S.C. § 2254(d) and (e). (Answer, Doc. 20 at 29 et seq.)

Petitioner replies on the merits. (Reply, Doc. 23 at 6, et seq.)

1. Limits on Habeas Relief

Deferential Review of Merits Decisions - While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court,” 28 U.S.C. § 2254(d) and (e), not every error justifies relief.

Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). See Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013) (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits).

Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error. This statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

Errors of Law - To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).

The Supreme Court has instructed that a state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted).

To show an unreasonable application, “a state prisoner 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.” Harrington, 562 U.S. at 103.

Where a general standard is being applied by the state court, great deference must be given before a decision may be deemed “unreasonable.”

At the same time, the range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Errors of Fact - Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).

Applicable Decisions - In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

2. Ineffective Assistance of Counsel

Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.

There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000).

An objective standard applies to proving such deficient performance, and requires a petitioner to demonstrate that counsel's actions were “outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense.” United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting Strickland, 466 U.S. at 687-90). The reasonableness of counsel's actions is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689.

3. Triple Deference

Where a federal habeas court is reviewing a state court's determination of a claim of ineffective assistance, the court must apply three levels of deference. First, Strickland requires deference to the decisions of counsel. Second, the AEDPA, and in particular 28 U.S.C. § 2254(d) and (e), mandate deference to the fact finding and legal decisions of the state courts. Third, because Strickland is a general standard, rather than a specific legal rule, the habeas court must, under Yarborough, provide even greater latitude to the state courts as they make case-by-case determinations in applying that rule. See Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010).

4. 1A(1) Jail Video

Factual Background - In reversing the grant of relief in Petitioner's first PCR proceeding, the Arizona Court of Appeals made the following factual findings:

While being transported to jail, Fuqua asked Officer D. if they could work out a deal and then told the officer he still had something on him. He said “it” was in his sock. When they arrived at the secure entrance area of the jail, Fuqua retrieved a small bag of methamphetamine from inside his sock and tossed it on the floor. The bag contained 1.50 grams of methamphetamine.

(Exh. TT, Order 4/9/13 at 3.) Petitioner was convicted for possessing these drugs under Count 21. (See Exh. RRR, Present. Rep. at Attach., Indictment, Doc. 27-2 at 20; Exh. M, R.T. 3/7/07 at 83, 103.) That court summarized Petitioner's claim:

Counsel failed to obtain jail video of the secured entrance area where Fuqua surrendered the methamphetamine, and this video “may [have] contain[ed] exculpatory evidence”

(Id. at 6.) Indeed, Petitioner argues in his Reply that the video was “Brady material,” and that it was material because testimony (at trial and in his civil suit) about the surrender of the drugs was ambivalent or contradictory, and corroborated only by assertions of the officers' lack of motive to lie. Petitioner testified at trial that there was no methamphetamine in his sock. (Exh. H, R.T. 12/1/06 at 78.) Testimony at the PCR hearing showed that the digital recordings of the video would have been overwritten within 30 to 35 days of the event, i.e. by October 20, 2005. (Exh. LL, R.T. 3/5/10 at 58-59.)

State Court Decision - The last reasoned decision on this claim was that of the Arizona Court of Appeals in Petitioner's 1^st PCR Proceeding, where the court reasoned:

Other than Fuqua's testimony that was presented to, and rejected by, the jury, there is no evidence that this video contained exculpatory evidence. In fact, Fuqua's claim that the video would have exculpated him is undercut by Officer F.'s testimony at sentencing and at the evidentiary hearing that he did not observe Fuqua and the officer when they first arrived at the jail and that he overheard part of a discussion about the drugs being found.

In any event, mere speculation that the video “may [have] contain[ed] exculpatory evidence” is not a sufficient showing of prejudice; we find that Fuqua's claim does not amount to “a probability sufficient to undermine confidence in the outcome” of his trial. Strickland, 466 U.S. at 694; see, e.g., State v. Berryman, 178 Ariz. 617, 621, 875 P.2d 850, 854 (App. 1994) (finding that counsel's failure to investigate whether a firearm was operable, without evidence that the firearm was inoperable, was too speculative to support an IAC claim).

(Id. at 9.)

Respondents argue that this reasoning survives review under the deferential standards of 28 U.S.C. § 2254(d) and (e).

Constructive Denial of Counsel - In his Reply, Petitioner argues generally as to all of Ground 1A, and for the first time, that he was constructively denied assistance of counsel. (Reply, Doc. 23 at 6, ¶ V(B).) This claim of the constructive denial of counsel is improperly raised for the first time in Petitioner's Reply, and thus need not be considered. Zamani, 491 F.3d at 997.

Even so, the claim is wholly without merit. The requirement for prejudice from counsel's performance is dispensed with when there is a constructive denial of counsel. “Constructive denial of counsel” is based on the rationale that “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659 (1984). Petitioner offers nothing to show that counsel “entirely” failed to challenge the prosecution's case, and instead only points to various deficiencies. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel may have made demonstrable errors -the kind of testing envisioned by the Sixth Amendment has occurred.” Id. at 656. Here, counsel undertook various investigations, pursued plea offers, cross-examined witnesses, and called defense witnesses. That is not the level of failure that triggers a finding of the constructive denial of counsel.

No Remediable Error - Despite specific direction in this Court's Order (Doc. 21 at 2), Petitioner's Reply points to no remediable factual error or specific legal error under Supreme Court law.

Petitioner offers nothing to show that the state court erred in finding an absence of evidence as to the exculpatory nature of the jail video. Rather, he simply argues that there was other conflicting evidence, and that the video could have resolved it. But apart from his own testimony (which the state court recognized had been rejected by the jury), Petitioner simply points to Officer Foshee's non-exculpatory testimony addressed hereinafter with regard to Ground 1A(3).¹³ (Reply, Doc. 23 at 6.)

13 Petitioner argues for the first time in his Reply that the prosecution had a duty preserve the video. (Reply, Doc. 23 at 6.) This is a new claim that need not be addressed. Even so, the obligation of police to preserve evidence only arises when the “exculpatory value [ ] was apparent before the evidence was destroyed.” California v. Trombetta, 467 U.S. 479, 489 (1984). Petitioner points to nothing to show the police had reason to believe the video would be exculpatory as opposed to inculpatory, i.e. in line with the officers' testimony that the drugs were in Petitioner's sock at the jail.

But, as observed by the state court, in the context of an ineffective assistance claim, Petitioner bears the burden of providing evidence to show that the evidence would have, not just could have, proved to be exculpatory. Petitioner points to no Supreme Court law to the contrary. Indeed, to establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Moreover, even if this claim were reviewed de novo, it must be rejected as without merit. A state habeas petitioner cannot leave the habeas to court to speculate about what unpursued evidence would have shown. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). Further, as argued by Respondents (Answer, Doc. 20 at 29), Petitioner offers nothing to show that counsel had facts available to him/her¹⁴ to cause him/her to seek the video evidence within the very brief time period before it was erased.

14 The 1^st PCR court observed that Plaintiff had changing attorneys throughout the pretrial period. “The evidence does not establish that the defendant's trial attorney and/or other attorney(s) who represented the defendant before trial were unable to obtain the jail video records of the defendant during his arrest and booking on September 14, 2005. The issue of effective assistance of counsel is not limited to representation by attorney Carolyn C. Holliday, but includes whether any attorney who represented the defendant obtained or could have obtained the records.” (Exh. OO, Order 1/18/11 at 3, ¶ 4.)

Ground 1A(1) must be denied.

5. 1A(2) Search of Residence

In reversing the grant of relief in Petitioner's first PCR proceeding, the Arizona Court of Appeals described Petitioner's claim regarding the search of his residence as follows:

Counsel failed to adequately pursue the fact that police found no incriminating evidence during the search of Fuqua's apartment, conducted after Fuqua was incarcerated and in light of evidence that K.C. had a key to the apartment

(Exh. TT, Order 4/9/13 at 6.) That court rejected this claim, reasoning:

The trial court found counsel had failed to use “[p]roof of the absence of incriminating evidence” found during the search of Fuqua's apartment. However, the record reflects that counsel brought out on cross-examination the fact that police did not find any incriminating evidence in Fuqua's apartment during the search conducted shortly after his incarceration. Fuqua's counsel also argued this point in closing.

In any event, Fuqua did not present any evidence of what counsel could have presented to the jury to aid Fuqua's defense if counsel had further investigated or pursued this “[p]roof of the absence of incriminating evidence” in his apartment. Thus, he failed to establish any prejudice.

(Id. at 10.)

In his Reply, Petitioner points to no remediable factual error or legal error by the state court. The undersigned finds none.

At most, Petitioner argues that counsel could have done more by pointing to his extensive criminal history, and the lack of similarity with the instant offenses. “What Fuqua's previous arrests show is a thief and nothing else.” (Reply, Doc. 23 at 6-7.) That is not the claim raised in the Petition (nor before the Arizona Court of Appeals), and thus need not be addressed here. Zamani, 491 F.3d at 997.

Moreover, trial counsel could have reasonably concluded that (given the defense's dependence on Petitioner's denials) admitting to a string of crimes involving moral turpitude was not an effective strategy. Indeed, this court need not determine the actual reason for an attorney's actions, as long as the act falls within the range of reasonable representation. Morris v. California, 966 F.2d 448, 456-457 (9th Cir. 1991). “On federal habeas review, ‘the question is not whether counsel's actions were reasonable[,]' but ‘whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.'” Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

Ground 1A(2) must be denied.

6. 1A(3) Witnesses

As presented to the Arizona Court of Appeals, Ground 1A(e) argues:

Counsel failed to interview the driver of the pick-up truck, Eddie Greer (Greer), who took Fuqua to the bar the night he was arrested and failed to timely interview Officer F., the detention officer who was working the night Fuqua was booked into jail, “in order to adequately decide whether [they] would provide exculpatory evidence to aid the defense”

(Exh. TT, Order 4/9/13 at 6.) That court rejected this claim, reasoning:

The failure to call Officer F. as a trial witness could not have prejudiced Fuqua because Officer F. was not in a position to observe Fuqua and Officer D. when they arrived in the secured entrance area of the jail. Furthermore, the record reflects trial counsel had her investigator interview Officer F. before trial and the investigator “did [not] come up with any indication or any evidence that would contradict Officer D.'s testimony.”

As to counsel's failure to interview Greer, the driver who brought Fuqua to the bar, an alleged failure to investigate does not meet the prejudice prong when, as here, Fuqua does not explain what evidence would have been discovered through additional investigation and how it might have changed the outcome of his trial. See Gallego v. McDaniel, 124 F.3d 1065, 1077 (9th Cir. 1997). Fuqua did not present an affidavit or any evidence regarding what Greer's testimony would have been and how it might have changed the outcome. This is fatal to his claim. See State v. Borbon, 146 Ariz. 392, 399-400, 706 P.2d 718, 725-26 (1985) (finding that defendant's statement that his attorney should have called several witnesses to testify was insufficient to raise a colorable claim because defendant

failed to include affidavits containing what testimony those witnesses would have offered).

(Id. at 10-11.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

Detention Officer Foshee - With regard to “Officer F” (Foshee) Petitioner replies that Foshee's testimony “would have, at least, cast doubt on Sgt. Dastrup's perjured testimony of claiming Fuqua gave him drugs.” (Reply, Doc. 23 at 7.) But this ignores the fact that Foshee's testimony, at best, only partially corroborated Dastrup's testimony and did not contradict it.

Foshee testified at sentencing that upon Petitioner's admittance to the jail, he met Petitioner in the jail sallyport, where he met the other officers. Foshee then stripped Petitioner of his street clothes, searched him, and placed him into county clothing, and that Foshee found no drugs on Petitioner at that time, and was not given any drugs that had already been taken off Petitioner. (Exh. L, R.T. 5/13/11 at 82-83.) He further testified that, as for conversation by other officers of finding drugs on Petitioner as he came into the jail's sallyport that Foshee “walked in midsentence, midconversation already about something of that nature” but he had no recollection of what the conversation was. (Id. at 85.)

Petitioner fails to explain how any of this casts doubt on Dastrup's testimony at trial that upon first entering the jail (after Petitioner told Dastrup that he had drugs in his sock), Petitioner sat down, pulled of his boot and sock, and pulled out a small baggie that he tossed to the ground, and after that Petitioner was turned over to the detention officers. Dastrup testified he had retrieved the baggie and eventually placed it in an evidence locker. (Exh. F, R.T. 11/30/06 at 177-181.)

Thus, at most, Foshee was unable to provide evidence of seeing the discovery of the drugs or to relay the contents of the conversation by the other officers, and that when Foshee subsequently searched Petitioner he found no drugs on him.

Thus, Petitioner still fails to show a reasonable probability that he would have been acquitted had Foshee testified a trial.

Driver Greer - With regard to Greer, who drove Petitioner to the bar where he was arrested, Petitioner argues that Greer would have testified that Petitioner did not have a duffle bag with him. But as pointed out by Respondents (Answer, Doc. 20 at 32), Petitioner has never presented any evidence that Greer would have so testified. “[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.” U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991). See also Grisby, 130 F.3d at 373.

Petitioner adds in his Reply assertions that he and Greer first went to a hospital to visit Greer's wife, and that counsel failed to investigate for surveillance video that would have shown Petitioner had no bag. (Reply, Doc. 23 at 11.) Again, this claim need not be addressed because it is untimely raised in the Reply. Zamani, 491 F.3d at 997. Moreover, Petitioner presents no evidence, only speculation, on what any such video would have shown.

Ground 1A(3) must be denied.

7. 1A(4) Bloody Tissue

The Arizona Court of Appeals described Ground 1A(4) as asserting:

Counsel failed to discover a color photograph that showed the bloody tissue in the duffle bag. Had counsel done so, counsel would have discovered the tissue and could have had it tested for DNA evidence;

(Exh. TT, Order 4/9/13 at 6.) That court found:

During plea negotiations, the prosecutor learned that Fuqua might claim at trial that the duffle bag was not his. Therefore, the prosecutor decided to have the holsters found in the duffle bag tested for DNA evidence. Test results reflected the presence of Fuqua's DNA. Based on the test results and the eye-witness testimony of police at the bar, the prosecutor believed any additional DNA testing of other items found in the duffle bag, including a bloody tissue, would be cumulative and unnecessary. Although the prosecutor had the DNA evidence from the holsters, he chose not to offer it at trial after the

trial court indicated it would sever the bar-related counts from the remaining counts if the DNA evidence were introduced at trial. The prosecutor decided “he would rather go [to trial] without [the] DNA and keep those counts together.”

(Id. at 4.) The court rejected the claim, reasoning:

Fuqua failed to establish that he was prejudiced by counsel's failure to discover and test the bloody tissue found in the duffle bag. Even if the tissue had been tested and Fuqua's DNA not found on the tissue, this would not prove the duffle bag was not his. Such evidence would merely establish that someone else had touched the tissue at some point in time. Thus, he would not have been entitled to a Willits instruction at trial. See, e.g., State v. Strong, 185 Ariz. 248, 251, 914 P.2d 1340, 1343 (App. 1995) (no error in failing to give Willits instruction based on failure to preserve possible fingerprints when such evidence would not possess exculpatory value). Furthermore, the lack of Fuqua's DNA on the tissue would not prove or disprove ownership of the duffle bag and, thus, would not have materially aided his defense. See, e.g., State v. Torres, 162 Ariz. 70, 75-76, 781 P.2d 47, 52-53 (App. 1989) (absence of defendant's fingerprints on heroin packet would not be exculpatory; therefore, proof of absence of fingerprints would not have materially aided defendant's defense).

Finally, as noted, DNA tests of the holsters found in the duffle bag revealed the presence of Fuqua's DNA, and there was ample trial testimony Fuqua carried this duffle bag and placed it in K.C.'s vehicle. Thus, evidence of the absence of Fuqua's DNA on this tissue would not have affected the outcome of his trial.

(Id. at 11-12.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

At most, Petitioner dismisses the state court's conclusions as “mind boggling” logic, and speculates that testing would have shown the blood to be that of K.C., not him, and that the DNA evidence from the holster was never admitted. (Reply, Doc. 23 at 7.)

Rather than “mind boggling,” the state court's logic is well trod ground. Except in rare occasions, the failure of a particular piece of evidence to inculpate a defendant does not render it exculpatory. The kinds of rare occasions generally involve situations where the particular piece of evidence is necessary to show guilt, or is so inconsistent with guilt as to create a reasonable doubt of guilt. Petitioner fails to show either situation. For example, he offers nothing to show that his DNA on the tissue was necessary to show guilt. Nor does he offer anything to show an irreconcilable inconsistency, e.g. that no other person had access to the duffle bag, nor even that he could not have placed the tissues in the bag himself. Moreover, Petitioner only speculates that his blood would not have been found on the tissues, or that K.C.'s blood would have.

Petitioner's complaint that the holster DNA evidence was not introduced at trial is misplaced. The issue in this claim is whether counsel should have pursued the tissue DNA. Once Petitioner's DNA was found in the duffle bag, there was little to be gained from further testing. Without any of Petitioner's DNA, there might have been some argument available that Petitioner's DNA should have been discovered if the bag and all its contents had indeed been in Petitioner's possession. But, once some of his DNA was determined to be there, counsel could have reasonably concluded that any reference to purportedly exculpatory DNA would have simply served to induce the prosecution to introduce the inculpatory DNA before the jury (even if it meant severing the trials), and to reinforce the inculpatory import of the holster DNA. This is so even if the defense may have had a rebuttal based on the alleged unreliability of the DNA results (discussed hereinafter re Ground 1A(5)). Counsel could have reasonably concluded that no holster-DNA evidence was better than rebuttable holster-DNA evidence, given the risk that the jury might reject the rebuttal.

Ground 1A(4) must be denied.

8. 1A(5) DNA results

The Arizona Court of Appeals described Ground 1A(5) as asserting:

Counsel failed to challenge the DNA testing done on the holsters and to have the bloody tissue tested, which deprived Fuqua of a possible Willits instruction that “may have aided [Fuqua] with severance of trial on some counts”

(Exh. TT, Order 4/9/13 at 6-7.) That court rejected the claim, reasoning:

Fuqua alleged counsel should have challenged the DNA evidence because, before testing, the holsters had been contaminated by being placed in contact with Fuqua's clothes where his “dead skin cells fell off.” However, the DNA evidence was not introduced at trial, and thus Fuqua could not have been prejudiced by the failure to challenge the DNA tests.

(Id. at 13.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

Petitioner does argue that he had photographic evidence of contamination by his clothes. (Reply, Doc. 23 at 7.) But the state court's decision did not rely on the validity of the legal challenge, but upon the fact that the DNA evidence had not been introduced at trial and therefore was irrelevant to the jury's finding of guilt and thus any lack of evidence of contamination was not prejudicial.

Petitioner next argues that despite the DNA evidence not being introduced at trial, it would have supported his other claims to show ineffective assistance (“constructive denial”) of counsel. But it is prejudice at trial which is relevant to his claim of ineffective assistance of trial counsel, not his ability to maintain his PCR petition claims, or his claims in this habeas case. Moreover, the only other claim related to the DNA is that in Ground 1A(4) regarding the bloody tissue, which was rendered non-prejudicial by the fact that such evidence was not effectively exculpatory. With or without the holster DNA, the lack of Petitioner's DNA on other items was not sufficiently exculpatory to overcome all the other evidence against him.

Ground 1A(5) must be denied.

9. 1A(6) Autozone Purchases

The Arizona Court of Appeals described Ground 1A(6) as asserting:

Counsel failed to investigate an AutoZone rewards card Fuqua possessed when he was arrested to determine what specifically had been purchased, which may have corroborated Fuqua's testimony that he had gone to the bar that night to fix K.C.'s radio

(Exh. TT, Order 4/9/13 at 7.) The court rejected that claim, reasoning:

When Fuqua was arrested, he was in possession of an AutoZone rewards card, and he introduced this card in evidence at the evidentiary hearing. The card contained various numbers, but Fuqua did not present any other evidence about the nature of those numbers or what items they represented. He presented no evidence that numbers on the card evidenced a purchase of a screwdriver or any other tools. Additionally, the defense investigator testified at the evidentiary hearing that Fuqua did not give him any information that would have allowed the investigator to pursue the matter.

While Fuqua faults counsel for failing to investigate this “defense,” he did not present any evidence as to what the investigation would have uncovered. A court may not find prejudice based on speculation about what evidence an investigation might have turned up. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); see Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995) (“Absent an account of what beneficial evidence investigation into any of these issues would have turned up, [the defendant] cannot meet the prejudice prong of the Strickland test.”).

K.C. testified her radio was not broken and that she never called Fuqua to come to the bar that night to fix it. She testified that when Fuqua called her, she told him to leave his weapons in her car and then to enter the bar to get the key. Fuqua's actions that night were entirely consistent with this testimony. When viewed in the context of the record, and absent the helpful evidence an investigation would have uncovered, it cannot be said that but for counsel's failure to investigate or present this defense, the outcome of the trial likely would have been different.

(Id. at 13-14.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

Indeed, Petitioner concedes that he agrees with the state court, but argues that it was his PCR counsel (not Petitioner himself) that failed to present the missing evidence that could have been discovered. (Reply, Doc. 23 at 7-8.) However, as discussed hereinabove in Section II(C)(2) (Limited to Records in State Case), Petitioner cannot rely upon any ineffectiveness of his PCR counsel to excuse his failure to develop the state court record. Thus, even if Petitioner could now provide the records, they could not be considered by this habeas court.

Ground 1A(6) must be denied.

10. 1A(7) Petitioner's Testimony

The Arizona Court of Appeals described Ground 1A(7) as asserting:

Counsel failed to discover “the nature of [Fuqua's] testimony which would have affected other areas of discovery and preparation for trial and [enabled counsel] to adequately advise him on whether he should testify”

(Exh. TT, Order 4/9/13 at 7.) The court rejected that claim, reasoning:

Trial counsel testified that Fuqua did not inform her of his decision to testify until after the State rested. The trial court found that if counsel had discovered the nature of Fuqua's testimony earlier,

it “would have affected other areas of discovery and preparation for trial and [enabled counsel] to adequately advise [Fuqua] on whether he should testify.” It is not clear whether this is a reference to the “radio repair defense” testimony or to something else. The trial court did not specify, and the record does not reflect what other discovery and trial preparation counsel could have done that would have resulted in the discovery or acquisition of evidence material to Fuqua's defense. The record does in fact reflect that counsel advised Fuqua not to testify because: (1) he had prior felony convictions; (2) by testifying the jury would hear Fuqua's voice and be able to compare his actual voice with the voice on the tapes and then confirm that the voice on the tapes was in fact Fuqua's voice; and (3) his defense that someone else sold drugs to the confidential informant during the controlled buys was not plausible.

In terms of this claim, Fuqua did not establish what evidence counsel could have discovered, how counsel could have prepared for trial differently, or how discovery of the nature of his testimony likely would have changed the outcome of the trial. Thus, Fuqua did not establish prejudice. See Salazar, 146 Ariz. at 542-43, 707 P.2d at 946-47.

(Id. at 14-16.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

In his Reply, Petitioner argues that the PCR court found that trial counsel testified “she did not know the defendant's theory of the case, i.e. his defense claim(s) until he testified at trial.” (Reply, Doc. 23 at 8 (citing Exh. P-1). See also Exh. P-1 (also Exh. OO), Order 1/18/11 at 5, ¶11.) But that was the decision of the PCR court, not the Arizona Court of Appeals. The appellate court found only that trial counsel had not learned of Petitioner's decision to testify until he chose to do so at trial. Indeed, trial counsel testified:

Q. In this type of case where it's -- I guess you might even classify it as a smoking gun, what was your theory of defense in this case?

A. Well, you know, I was thinking about that, and it's probably somewhere in the -- if they ever made a transcript of the opening statement, but in this case, it's pretty much that the State has to prove Mr. Fuqua guilty beyond a reasonable doubt as to each element of each crime that's charged. And so it was kind of a, you know, having to pick away at some of the details.

Q. Well, did the defendant have any kind of a theory of defense in this case that he relayed to - -

A. Well, he, against my advice, testified, and his theory became evident in his testimony: That it wasn't him.

(Exh. JJ, R.T. 1/15/10 at 76-77.) The appellate court made no factual error.

Petitioner further complains that counsel effectively admitted that had Petitioner not taken the stand she would have never known his defenses. But Petitioner points to nothing in his testimony, besides his denials, that established a viable defense. Nor does he do so now. Nor does he proffer anything to suggest that counsel's advice to Petitioner to not testify was not a reasonable tactical choice.

Finally, Petitioner notes that the PCR court concluded that “poking holes” in the prosecution's case is not a reasonable strategy. Again, however, it is the appellate court's decision which must be reviewed by this Court. Moreover, the PCR court's conclusion was more nuanced:

It is not reasonable representation for counsel seek to challenge the state's evidence only by "poking holes" in the state's evidence and without actively pursuing investigation and discovery of relevant evidence to support the defendant's claims in support of his testimony.

(Exh. OO, Order 1/18/11 at 5, ¶ 11.) The appellate court relied on no contrary contention, but simply observed that Petitioner failed to identify what viable defense further investigation would have produced. Moreover, “poking holes” is a legitimate strategy, if it is the only viable one available to counsel.

In many cases, the law and facts will be so overwhelmingly in favor of the government that defense counsel can do little more than try to poke holes in the government's case in cross-examination. The hopelessness of some cases may even relegate the most competent defense counsel to the role of official hand-holder. The Sixth Amendment does not hold an attorney responsible for the difficulty of the case he inherits. The choice to pursue a bad strategy makes no comment on an attorney's judgment where no better choice exists.

Hendricks v. Calderon, 70 F.3d 1032, 1042 (9^th Cir. 1995). “The sixth amendment does not require counsel to invent a defense.” Haynes v. Cain, 272 F.3d 757, 764 (5th Cir. 2001), rehr'g granted on other grounds, 284 F.3d 604 (5th Cir. 2002).

Ground 1A(7) must be denied.

11. 1A(8) Diagrams

The Arizona Court of Appeals described Ground 1A(8) as asserting:

Counsel failed to present diagrams of the bar and parking lot “in order to examine witness(es) about the events there, including cross-examination

of the witnesses regarding [Fuqua's] possession of the black [duffle] bag”

(Exh. TT, Order 4/9/13 at 7.) The court rejected that claim, reasoning:

As with preceding claims, even if counsel should have prepared diagrams or other visual aids of the bar and parking lot for use in cross-examination of witnesses, Fuqua failed to establish any resultant prejudice. Fuqua did not offer in evidence any diagram or other visual aid that counsel should have used, nor did he demonstrate how such diagram or visual aid would have aided his defense or affected the outcome of his trial. To succeed on this claim, Fuqua had the burden to make an actual showing of prejudice. See Berryman, 178 Ariz. at 620, 875 P.2d at 853 (stating that a defendant has the burden of proving claims for post-conviction relief by a preponderance of the evidence).

(Id. at 15-16.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

Petitioner argues that PCR counsel took pictures “ten months after the trial court issued its ruling granting PCR in January, 2011,” and that they would have shown that the officers could not have seen him place the duffle bag in the CI's car. But Petitioner proffers nothing to show that these pictures were before the appellate court at all, let alone properly so given the charge to the appellate court to review the decision of the PCR court, based on the record before that court. See Ariz. R. Crim. Proc. 32.16(b), (c)(2)(C), and (j).

Moreover, for the reasons discussed hereinabove in Section II(C)(2) (Limited to Records in State Case), this habeas Court may not consider records not before the state courts, even if PCR counsel was ineffective in not timely presenting them to the state courts.

Ground 1A(8) must be denied.

12. 1A(9) Petitioner's mother

The Arizona Court of Appeals described Ground 1A(9) as asserting:

Counsel failed to call Fuqua's mother as a witness to testify that she did not believe the voice on the tape was her son's voice

(Exh. TT, Order 4/9/13 at 7.) The court rejected this claim, reasoning:

Fuqua's mother testified at the evidentiary hearing that she had listened to the tapes and that her son's voice was not on the tapes. This would have corroborated Fuqua's trial testimony. However, the jury heard Fuqua when he testified and also heard the voice on the tape, and the jury found it was Fuqua's voice on the tape. Thus, there is no reasonable probability, a probability sufficient to undermine confidence in the outcome, that, but for counsel's failure to call Fuqua's mother to testify on his behalf, the result of the trial would have been different. See Strickland, 466 U.S. at 694.

(Id. at 16.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

At most, Petitioner argues this claim should be considered in conjunction with Ground 1A(10) regarding a voice identification expert.

The Ninth Circuit has long held that a finding of Strickland prejudice “may either be ‘cumulative' or focus on one discrete blunder in itself prejudicial.” Ewing v. Williams, 596 F.2d 391, 395-96 (9th Cir. 1979). See also Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 2018) (“ We have long recognized ...that “prejudice resulting from ineffective assistance of counsel must be ‘considered collectively, not item by item'”) (emphasis added, quoting Doe v. Ayers, 782 F.3d 425, 460 n. 62 (9th Cir. 2015)).

However, there is no clearly established Supreme Court law on this issue, and the circuits are split. “[T]he Supreme Court has not yet rendered cumulative analysis of an attorney's errors to determine Strickland prejudice as clearly established federal law.” Ruth A. Moyer, To Err Is Human; to Cumulate, Judicious: The Need for U.S. Supreme Court Guidance on Whether Federal Habeas Courts Reviewing State Convictions May Cumulatively Assess Strickland Errors, 61 Drake L. Rev. 447, 475 (2013) (although some of the cases cited appear to address cumulative error from disparate constitutional claims rather than cumulative error from disparate instances of counsel's deficient performance).

Presently, circuit courts are split over whether federal courts in § 2254 actions may cumulatively assess an attorney's errors in determining whether there is Strickland prejudice. The majority of courts-the First, Second, Third, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits-have answered this question affirmatively.

A minority of circuits-the Fourth and Eighth-have held that federal courts in § 2254 actions may not cumulatively assess an attorney's errors in determining whether there is Strickland prejudice.

Brian R. Means, Cumulative Error, Federal Habeas Manual § 13:4 (May 2019 Update) (citations omitted).

Accordingly, in cases governed by 28 U.S.C. § 2254(d), such as this one, a habeas court may not look to cumulative prejudice from multiple instances of deficient performance by counsel.

Moreover, as discussed hereinafter, Petitioner has failed to support Ground 1A(10).

Ground 1A(9) must be denied.

13. 1A(10) Voice Recordings

The Arizona Court of Appeal characterized Ground 1A(1) as asserting:

Counsel failed to have transcripts of the tapes made and did not retain a voice identification expert.

(Exh. TT, Order 4/9/13 at 7.) The court rejected this claim, reasoning:

Fuqua presented no affidavit, testimony, or other evidence from any voice identification expert that the voice on the tapes could not be reliably identified or that it was not Fuqua's voice on the tapes. He failed to present “an account of what beneficial evidence” would have been acquired for use at trial had counsel transcribed the tapes and retained a voice identification expert, and thus he failed to establish prejudice. Hendricks, 70 F.3d at 1042; see also Borbon, 146 Ariz. at 399-400, 706 P.2d at 725-26.

(Id. at 17.)

Petitioner fails to point to any remediable factual or legal error. The undersigned finds none.

At best, Petitioner argues in his Reply that the voice is not his own and (in his own opinion) the voices in the tapes are different from each other, and that counsel did not listen to the tapes until after jury selection, indicating a lack of preparation. Petitioner again speculates that a voice expert would have supported his contention, and that any failure to get an expert was PCR counsel's fault. (Reply, Doc. 23 at 8-9.)

Counsel's purported delay in investigating the tapes is irrelevant to the issues before this Court because the state court did not rely upon counsel's adequate performance, but upon the lack of a showing of prejudice. Petitioner's own self-serving evaluation was effectively presented to the jury in Petitioner's testimony. Petitioner's bare speculation about an unknown expert's opinion is insufficient to support his claim. Grisby, 130 F.3d at 373. And, for the reasons discussed hereinabove in Section II(C)(2) (Limited to Records in State Case), even if Petitioner could now provide an expert's affidavit, this habeas Court may not consider evidence not before the state courts, even if PCR counsel was ineffective in not timely presenting it to the state courts.

Ground 1A(10) must be denied.

D. SUMMARY

Grounds 2, 3, and 4 are all non-cognizable claims based on events in Petitioner's PCR proceedings. Petitioner's claims in Grounds 1B, 1C, 1D are procedurally defaulted, and Ground 1E was procedurally barred on state grounds. Petitioner fails to show cause and prejudice or actual innocence to excuse his procedural defaults. Petitioner's motion to expand the record must be denied, and based upon the record before this Court, Grounds 1A(1) through 1A (10) must be denied.

IV. CERTIFICATE OF APPEALABILITY

The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).

Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.

Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED:

(A) Petitioner's Motion to Expand the Record (Doc. 25) be DENIED.

(B) Petitioner's Second Motion to Expand the Record (Doc. 32) be DENIED.

(C) Grounds 1B, 1C, 1D, 1E, 2, 3, and 4 of Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 13) be DISMISSED WITH PREJUDICE.

(D) The remainder of Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 13), including Grounds 1A(1), 1A(2), 1A(3), 1A(4), 1A(5), 1A(6), 1A(7), 1A(8), 1A(9) and 1A(10) be DENIED.

(E) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

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

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).

In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”