Opinion
CV-16-2510-PHX-ROS (JFM)
03-23-2017
Steve Galeazzi, Petitioner v. Charles L. Ryan, et al., Respondents.
Report & Recommendation on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Red Rock Correctional Center at Eloy, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 22, 2016 (Doc. 1). On October 27, 2016 Respondents filed their Response (Doc. 9). Petitioner filed a Reply on November 14, 2016 (Doc. 12).
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.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL
On January 17, 2012, Petitioner was indicted in Maricopa County Superior Court on 16 counts of discharging a firearm at a structure (class 2 dangerous felonies), one count of attempt to commit second degree murder (class 2 dangerous felony), and one count of threatening or intimidating (class 6 dangerous felony). (Exhibit F, Indictment.) (Exhibits to the Answer, Doc. 9, are referenced herein as "Exhibit ___.")
An evaluation of Petitioner's competency to stand trial was conducted pursuant to Rule 11, Arizona Rules of Criminal Procedure. (Exhibit G, M.E. 1/24/12; Exhibit H, M.E. 2/1/12.) Petitioner was eventually deemed competent to stand trial. (Exhibit I, M.E. 3/22/12.)
On July 19, 2012, Petitioner entered into a written Plea Agreement (Exhibit J), wherein he agreed to plead guilty to one count of discharge of a firearm at a structure (class 2 dangerous felony), and one amended count of aggravated assault (class 3 dangerous felony), with an agreement for concurrent prison terms, and other conditions. The Plea Agreement reflected that the discharge of a firearm count had a sentencing range of 7 to 21 years, with a presumptive sentence of 10.5 years, and the aggravated assault had a sentencing range of 5 to 15 years, with a presumptive sentence of 7.5 years.
Petitioner entered his plea pursuant to the Plea Agreement on July 19, 2012 (Exhibit K, M.E. 7/19/12.) In the course of the plea colloquy, Petitioner related his use of psychiatric medications:
THE COURT: All right. Sir, I need to know if you have taken any psychotropic drugs, in other words, drugs for ongoing mental health or psychiatric conditions, have you in the last 24 hours?(Exhibit L, R.T. 7/19/12 at 5.)
THE DEFENDANT: Yeah.
THE COURT: And do those medications affect your ability to understand what is going on here?
[The Defendant]: No.
THE COURT: In other words, are you thinking clearly?
THE DEFENDANT: Absolutely.
THE COURT: And you understand what is going on?
THE DEFENDANT: Yeah.
THE COURT: Are you on any kind of pain medication?
THE DEFENDANT: No.
THE COURT: Okay. Mr. Duncan [defense counsel], I know you said you met with him this morning and you feel comfortable that he can go forward this morning?
MR. DUNCAN: I do. I have had a lengthy discussion with Mr. Galeazzi this morning, I believe he is, he understands these proceedings and the Court's questions.
The State filed a Sentencing Memorandum (Exhibit M), recommending that Petitioner be sentenced to an aggravated, effective term of 18 years in prison.
Petitioner filed a Sentencing Memorandum (Exhibit N), seeking a mitigated sentence of 7 years in prison, citing his "long history of medical conditions and mental health deficiencies" (id. at 1), including a childhood diagnosis of Attention Deficit Hyper Activity Disorder, hallucinations, behavioral disorders, ensuing drug usage, and contracting HIV. Petitioner argued the offenses were the result of an "addled mind." (Id. at 4.)
The Presentence Report recommended sentences "greater than the presumptive." (Exhibit O at 10.)
On August 31, 2012, Petitioner was sentenced to an aggravated sentence of 18 years on the discharge of a firearm, and a concurrent aggravated sentence of 12 years on the aggravated assault, for an effective sentence of 18 years in prison. (Exhibit P, Sentence.) B. PROCEEDINGS ON DIRECT APPEAL
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2; Exhibit A, Docket.)
Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995). C. PROCEEDINGS ON POST-CONVICTION RELIEF
On November 5, 2012, Petitioner commenced a post-conviction relief proceeding by filing his Notice of Post-Conviction Relief (Exhibit T). Counsel was appointed (Exhibit U, M.E. 11/8/12), but eventually filed a Notice of Completion (Exhibit V), evidencing an inability to find an issue for review. Counsel was ordered to remain in an advisory capacity, and Petitioner was granted leave to file a pro per petition. (Exhibit W, M.E. 4/17/13.)
Petitioner then filed his pro per PCR Petition (Exhibit X), asserting a coerced confession, ineffective assistance of counsel, unlawfully induced guilty plea, and illegal sentence, all based on factual allegations that counsel refused Petitioner's request for a jury trial and offered wrong advice as to the prison term that would be imposed under the guilty plea. The State responded, arguing that the petition was not supported with sufficient facts. (Exhibit Y, PCR Response.)
On July 2, 2013, Petitioner moved to withdraw the petition and submit an untimely amended petition. (Exhibit Z.) The request was granted. (Exhibit CC, M.E. 8/16/13.)
Petitioner then submitted an Amended Petition for Post-Conviction Relief (Exhibit DD), arguing ineffective assistance of counsel in advising Petitioner about the sentence to be expected under the plea agreement, failing to request a mitigation hearing based on Petitioner's mental health, and advising Petitioner he would lose at trial. He also argued his plea was knowing and voluntary because of his mental health condition and medications. The State again responded. (Exhibit EE.)
On July 27, 2014, the PCR Court dismissed the Petition, finding it to be without merit. (Petition, Doc. 1, Exhibit D, Exhibit 2, M.E. 1/27/14.)
Petitioner then filed a petition for review, labelled "Motion to File Opening Brief (Petition, Doc. 1, Exhibit B.) Petitioner argued inter alia that counsel was ineffective for misadvising Petitioner about his sentence, failing to request a mitigation hearing, and arguing that due to his medications his plea was not knowing and voluntary.
The Arizona Court of Appeals granted review, but denied relief. The court affirmed the PCR court's rejection of Petitioner's claims of ineffective assistance and voluntariness of the plea. The Court declined to reach issues raised for the first time to it, including claims that he should have been advised about potential aggravating factors, and that the trial court, prosecutor and his counsel all had a conflict of interest. (Exhibit KK, Mem. Dec. 8/10/15.)
Petitioner did not seek further review. (Exhibit LL, Mandate.) / / / / D. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 22, 2016 (Doc. 1). Petitioner's Petition asserts the following two grounds for relief:
In Ground One, Petitioner claims his trial counsel rendered ineffective assistance of counsel because he failed to request a hearing for "medical and [psychological] reasons" and failed to have experts testify at sentencing. In Ground Two, Petitioner alleges counsel advised him to accept the plea agreement but never discussed aggravating factors with Petitioner.(Order 10/4/16, Doc. 4.) In addition to the foregoing, Ground Two argues that counsel misadvised him about the sentencing under the plea agreement.
For clarity, the undersigned delineates the claims as follows: 1(a) ineffective assistance re hearing; 1(b) ineffective assistance re experts; 2(a) ineffective assistance re sentencing prediction; and 2(b) advice re aggravating factors.
Response - On October 27, 2016, Respondents filed their Response ("Answer") (Doc. 9). Respondents argue that Ground 1(a) (ineffective assistance re hearing) is waived by failing to adequately support it (id. at 21-22). Respondents argue that Ground 1(b) (ineffective assistance re experts) is waived by failing to adequately support it (id. at 23), the claim is procedurally defaulted (id. at 23-24), and the claim is without merit because not adequately supported with information about the available evidence or witnesses (id. at 24).
Respondents argue that Ground 2(a) (ineffective assistance re sentencing prediction) is without merit (id. at 24-27), and Ground 2(b) (ineffective assistance re aggravating factors) was procedurally barred (id. at 27-28) and is without merit (id. at 28-31).
Respondents filed a Notice of Errata (Doc. 11) on November 10, 2016, correcting the page number of a pin cite, and the date on the Answer and Certificate of Service.
Reply - On November 14, 2016 Petitioner filed a Reply (Doc.12). Petitioner argues the merits of his claims, his struggles with mental health, and his contrition.
III. APPLICATION OF LAW TO FACTS
A. EXHAUSTION , PROCEDURAL DEFAULT AND PROCEDURAL BAR
Respondents argue that Ground 1(b) (IAC re experts at sentencing) is procedurally defaulted and Ground 2(b) (regarding aggravating factors) was procedurally barred on an independent and adequate state ground, and thus are barred from federal habeas review. 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). The exhaustion doctrine, first developed in case law, has been codified at 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)(per curiam), cert. denied, 455 U.S. 1023 (1982).
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).
Proper Forum - "In cases not carrying a life sentence or 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)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
Proper Vehicle - Ordinarily, "to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).
Factual Basis - A petitioner must have fairly presented the operative facts of his federal claim to the state courts as part of the same claim. A petitioner may not broaden the scope of a constitutional claim in the federal courts by asserting additional operative facts that have not yet been fairly presented to the state courts. Expanded claims not presented in the highest state court are not considered in a federal habeas petition. Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). And, while new factual allegations do not ordinarily render a claim unexhausted, a petitioner may not "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986). See also Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.1994).
Legal Basis - Failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite "book and verse on the federal constitution," Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a "somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). "[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law," Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by "a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state law is not sufficient.
For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).
Proper Mode - "[O]rdinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). The Arizona habeas petitioner "must have presented his federal, constitutional issue before the Arizona Court of Appeals within the four corners of his appellate briefing." Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). But see Insyxiengmay v. Morgan, 403 F.3d 657, 668-669 (9th Cir. 2005) (arguments set out in appendix attached to petition and incorporated by reference were fairly presented). 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 preclusion bar, 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. 9 at 23.)
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, as a pleading defendant, Petitioner had no right to file any direct appeal. See Ariz. R. Crim. Proc. 17.1(e); Montgomery, 181 Ariz. at 258, 889 P.2d at 616.. 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.
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. 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 claims are of the sort requiring a personal waiver, and Petitioner's claims of ineffective assistance similarly have at their core the kinds of claims not within the types 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 appears that such exceptions would apply. The rule defines the excepted claims as follows:
d. The person is being held in custody after the sentence imposed has expired;
e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:
(1) The newly discovered material facts were discovered after the trial.
(2) The defendant exercised due diligence in securing the newly discovered material facts.
(3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.
f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or
g. There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or
h. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant
guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.Ariz.R.Crim.P. 32.1.
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 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 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.
Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The federal courts have routinely held that it is. "Arizona's waiver rules are independent and adequate bases for denying relief." Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir.) cert. denied, 135 S. Ct. 710 (2014). See also Stewart v. Smith, 536 U.S. 856, 861 (2002) (Arizona's waiver rule is independent of federal law); and Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (adequate because consistently and regularly applied).
Timeliness Bar - Similarly, Petitioner fails to proffer anything to suggest that Rule 32.4 is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The district courts in Arizona have held that it is. See e.g. Morgal v. Ryan, 2013 WL 655122, at *16 (D. Ariz. Jan. 18, 2013) report and recommendation adopted, 2013 WL 645960 (D. Ariz. Feb. 21, 2013). 4. Application to Petitioner's Claims
Respondents argue that Grounds 1(b) (IAC re experts) and 2(b) (IAC re aggravating factors) are procedurally defaulted.
a. Ground 1(b) - IAC re Experts
In Ground 1(b) of his Petition, Petitioner argues that his trial counsel rendered ineffective assistance of counsel because he failed to have experts testify at sentencing. Petitioner alleges Ground 1 was presented to the Arizona Court of Appeals in his PCR proceeding. (Petition, Doc. 1 at 6.)
Respondents argue this claim was never presented to the state courts and is now procedurally defaulted.
Petitioner replies only on the merits of this claim. (Reply, Doc. 12 at 1.)
Petitioner's only foray to the Arizona Court of Appeals was in his PCR proceeding. He did not assert in that proceeding any argument that counsel was ineffective for failing to call experts at sentencing. At best, Petition argued ineffective assistance of counsel, and asserted counsel should have set a mitigation hearing, which is the substance of Ground 1(a). (See generally Petition, Doc. 1, Exhibit B, Pet. for Rev.)
However, ineffective assistance claims are highly fact dependent and not fungible. 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).
Accordingly, Petitioner's Ground 1(b) was not fairly presented and for the reasons discussed hereinabove in Section III(A)(2), it is now procedurally defaulted.
b. Ground 2(b) - IAC re Aggravating Factors
In Ground 2(b), Petitioner argues that prior to entry of his plea he was not advised by counsel regarding aggravating factors. Petitioner alleges he raised this claim to the Arizona Court of Appeals in his second PCR petition, which the undersigned construes to refer to his petition for review. (Petition, Doc. 1 at 7.)
Respondents argue this claim was procedurally barred on an independent and adequate state ground, and thus is barred from federal habeas review; or alternatively, that it was not fairly presented because not presented to the PCR court, and is now procedurally defaulted. (Answer, Doc. 9 at 27-28.)
Petitioner does not address the exhaustion of this claim in his Reply (Doc. 12).
In his Petition for Review, Petitioner argued:
Also the court should take into consideration, there was no
conversation about aggravating factors in this plea agreement, the court must advise the defendant of any aggravating factors before a plea can be effectively established.(Petition, Doc. 1, Exhibit B, Pet. for Rev. at 3 (typographical corrections not reflected).)
The Arizona Court of Appeals rejected the claim:
On review, Galeazzi restates the claims made below, argues for the first time that he should have been advised about potential aggravating factors, and suggests that the trial court, the prosecutor, and his counsel had a conflict of interest. ... As to Galeazzi' s new claims, we do not address claims raised for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(l)(ii) (petition for review should contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review").(Exhibit KK, Mem. Dec. 8/10/15 ¶ 4.)
Accordingly, Petitioner's claim that the court failed to advise him about aggravating factors was rejected by the Arizona Court of Appeals on state law grounds, based on Petitioner's failure to raise the claim in the PCR court. If that was the claim that Petitioner raised here, it would be barred from habeas review as procedurally barred on state grounds.
But here, Petitioner's claim is not that the court failed to advise him, but that counsel did so. That claim was not raised in the state courts. "While [the ineffective assistance and underlying constitutional claim are] admittedly related, they are distinct claims with separate elements of proof, and each claim should have been separately and specifically presented to the state courts." Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005).
Accordingly, Ground 2(b) was not fairly presented to the state courts, and for the reasons discussed in Section III(A)(2) is now procedurally defaulted.
c. Summary Re Exhaustion
Based upon the foregoing, the undersigned concludes that Petitioner has procedurally defaulted on Grounds 1(b) (IAC re expert) and 2(b) (IAC re aggravating factors). 5. 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), cert. denied, 498 U.S. 832 (1990). 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).
Petitioner makes no argument in his Petition or Reply that he has cause to excuse his procedural defaults. Petitioner does reference his mental health problems in connection with his pleas of contrition. (Reply, Doc. 12 at 1.)
"[A] pro se petitioner's mental condition cannot serve as cause for a procedural default, at least when the petitioner on his own or with assistance remains 'able to apply for post-conviction relief to a state court.'" Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir. 2012) (quoting Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir.1986)). While circuit precedent does not "necessarily foreclose the possibility that a pro se petitioner might demonstrate cause in a situation where a mental condition rendered the petitioner completely unable to comply with a state's procedures and he had no assistance... they do prevent us from excusing a procedural default where a mental defect had less of an adverse effect on the petitioner's ability to comply with state procedures than illiteracy would have had." Id. at 1154.
Here, Petitioner had the benefit of counsel in his PCR proceeding before the trial court, where the exhaustion of his procedurally defaulted claims first occurred. Moreover, Petitioner was able to adequately raise other similar claims of ineffective assistance both to the PCR court and on review thereof, despite whatever impediment his mental health created, indicating that his mental health did not prevent him from raising his procedurally defaulted claims of ineffective assistance.
Summary re Cause and Prejudice - Based upon the foregoing, the undersigned concludes that Petitioner had failed to establish cause to excuse his procedural defaults.
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). Petitioner has failed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice. 6. 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).
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).
Here, Petitioner makes no assertion of actual innocence. At most, he argues that he "snapped" as a result of "[t]he voices in my head," and that he "never tried to kill" the victim. (Reply, Doc. 12 at 1-2.) But Petitioner proffers no argument that either contention would render him factually innocent of the charges to which he pled guilty, discharge of a firearm at a structure and aggravated assault.
Despite his references to his mental health, Petitioner makes no contention that he was legally insane under Arizona law at the time of the offenses. The applicable Arizona statute, "limit[s] the availability of the insanity defense to a person who, at the time of the criminal act, was 'afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong.'" State v. Tamplin, 195 Ariz. 246, 986 P.2d 914 (App. 1999) (quoting Ariz. Rev. Stat. § 13-502(A)). In Tamplin, the court concluded that despite the defendant's contention that he "believed he was committing the offenses under coercion from hallucinatory voices and therefore believed that he was acting "rightly" by his own subjective standards," there was no viable insanity defense because Petitioner knew his conduct was objectively wrong. 195 Ariz. at 247, ¶ 5, 986 P.2d at 915. Petitioner makes no suggestion that he was incapable of knowing his conduct was objectively wrong.
Moreover, "[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Bousley v. U.S., 523 U.S. 614, 624 (1998). Petitioner does not establish his actual innocence of the additional charges of discharging a firearm at a structure, or attempted second degree murder, foregone by the prosecution as part of the plea agreement. Although Petitioner argues he did not intend to kill the victim, under Arizona law, "[t]he offense of attempted second-degree murder under §§ 13-1001(A)(2) and -1104(A)(2) does not...require an intent to cause death. The culpable mental state of knowingly causing the death of another is sufficient." State v. Ontiveros, 206 Ariz. 539, 541, 81 P.3d 330, 332, n.1 (App. 2003).
Accordingly, Petitioner fails to make a showing that no reasonable juror would have found him guilty. Therefore, his procedurally defaulted and procedurally barred claims must be dismissed with prejudice. B. MERITS OF GROUND 1(A) - IAC RE MITIGATION 1. Parties Arguments
In Ground 1(a), Petitioner argues that counsel was ineffective for failing to request a mitigation hearing for "medical and psychological reasons." (Petition, Doc. 1 at "6", physical page 38.)
Respondents argue that this claim is conclusory, and inadequately argued, and that the rejection of this claim on the merits by the state court is not contrary to or an unreasonable application of Supreme Court law. (Answer, Doc. 9 at 17-22.)
Petitioner does not address the merits of this claim in his Reply. 2. Standard of Review on Habeas
Standard Applicable on Habeas - 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.
Errors of Law - "[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). To justify habeas relief, a state court's 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).
Errors of Fact - Federal courts are further authorized to grant habeas relief in cases where the state-court 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, a state prisoner is not free to attempt to retry his case in the federal courts by presenting new evidence. There is a well-established presumption of correctness of state court findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence."
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).
No Decision on the Merits - The limitations of 28 U.S.C. § 2254(d) only apply where a claim has been "adjudicated on the merits in State court." Thus, where a petitioner has raised a federal claim to the state courts, but they have not addressed it on its merits, then the federal habeas court must address the claim de novo, and the restrictive standards of review in § 2254(d) do not apply. Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013). See id. (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits). / / 3. Factual Background
At sentencing, trial counsel filed a Sentencing Memorandum (Exhibit N), in which he argued for a mitigated term "because Mr. Galeazzi has a long history of medical conditions and mental health deficiencies." (Id. at 1.) Counsel detailed cranial surgery as an infant, diagnosis at 4 years old with severe Attention Deficit Hyper Activity Disorder, unsuccessful placement in a convent school, failure from special education classes, drug and alcohol usage, HIV, limited employment and limited IQ. (Id. at 1-3.) He argued that prior to the charges, Petitioner could hear, smell and feel "demons" and "spirits" and had a " 'very organized delusion of 'a cause' given' to him [about] 'witches and sorcerers' who live across the street." (Id. at 3.) Counsel referenced and quoted the psychiatric reports prepared about Petitioner. Counsel summarized:
In short, Mr. Galeazzi is a 48-year-old with behavioral disorder, mental impairment, limited education, HIV, and a long history of polysubstance abuse. He requires a cocktail of medication in order to stay alive wider the best circumstances. Mr. Galeazzi's harassment of [the victim] comes at the tail end of a life marked by hallucinations, near-illiteracy, and self-medication with drug abuse. Mr. Galeazzi told Dr. Mogrovejo that "I regret, I shouldn't have done it to my neighbor." Given that Mr. Galeazzi's medical conditions mean that almost any sentence of length will be a death sentence, he respectfully requests that this court consider the totality of his health circumstances and sentence him to seven years.(Id. at 4.)
At sentencing, counsel presented testimony from Petitioner's mother and sister, who described Petitioner's declining mental health. (Exhibit R, R.T. 8/31/12 at 37-44.) Counsel argued Petitioner's mental health, hallucinations, etc. (Id. at 45.) Counsel summarized the history and expert opinions:
This is a mentally ill person. He had his brain scraped when he was 4 years old. He has never been right. He has been in Special ED. He is illiterate.
He has doctors that State points out the one doctor that doesn't believe his hallucinations, well, that is a bad doctor. That doctor doesn't know what they're talking about.
The other one does. He has got that legitimate, that is why they put him on psychotropic drugs, he has got a cocktail going on, but not having hallucinations, are you kidding me? This is one of
the most sickest, mentally ill defendants we can have in this courtroom without him being Rule 11.(Id. at 46-47.)
And to come in here and villainize a mentally ill person is I understand why it happened, but there is two sides to every story, no one should go through what the victim went through, no one, no neighborhood should. I am not justifying but asking this Court to put this in context. This is someone who is really ill, the defendant.
In pronouncing sentence, the trial court acknowledged Petitioner's physical and mental health issues:
It is clear to the Court that the defendant's mental health apparently started deteriorating within the last three years.(Id. at 57-58.) 4. State Court Ruling
I will note that the State asserts, apparently proven with letters of support for the victim -- for the defendant, that apparently he was able to have very normal, positive relationships with a lot of people in the neighborhood.
And so this didn't appear to be a mental health issue, that is just affected all of this human interaction. Apparently was just directed at [the victim].
But when he has apparently a mental health condition that is deteriorating and it appears to be directed toward one person and those actions toward that person continued to escalate, there is some duty to get some help, there is just some duty to get some help.
And if he was incapable of doing it, his family certainly was around and clearly must have seen this deterioration that deteriorated to the point where he picked up an aggravated harassment charge against this victim over a year before this, December 26th, 2010. The time to move out of State was then.
* * *
I note in trying to formulate what the appropriate sentence is that if the defendant does suffer from hearing voices and that is a tragic situation. And must be something that is very difficult to live with, but it can be treated through medication and structured services.
Like I said, there was an advanced warning, in three years that condition was deteriorating and certainly to [the victim] and his interactions with her. So is there an ample opportunity to seek help?
Petitioner raised this claim in his PCR proceeding, both to the PCR court (Exhibit DD, PCR Petition, Exh. 1, Affidavit at 1-2), and to the Arizona Court of Appeals (Petition, Doc. 1, Exhibit B, PFR at 1-2). The Arizona Court of Appeals summarized the proceedings in the PCR court:
Galeazzi then filed a pro se petition claiming his trial counsel had been ineffective by ...failing to request a mitigation hearing to raise Galeazzi' s mental health issues...The trial court summarily denied relief, concluding ... that counsel had presented sufficient information about Galeazzi's mental health issues.(Exhibit KK, Mem.Dec. at ¶ 3.) In rejecting Petitioner's claim, the trial court referenced On review, the court held: "As to the claims Galeazzi raised below, we have reviewed the record and conclude the court clearly identified and correctly rejected them in its minute entry, which we accordingly adopt." (Id. at ¶ 4.) 5. Applicable Law
a. Waiver by Guilty Plea
Petitioner pled guilty. A guilty plea breaks the chain of events that proceeded it in the criminal process. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Once a defendant enters a valid guilty plea, he can no longer raise a claim of violation of constitutional rights that arose prior to the plea. He may only attack the voluntary and intelligent character of the guilty plea. Id. at 267; United States v. Benson, 579 F.2d 508, 510 (9th Cir. 1978). The Supreme Court has stated that where "a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. . . . [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective]." Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (internal quotation marks and citations omitted).
Claims of ineffectiveness arising after entry of the plea, for example in the course of sentencing, on appeal, etc., are not waived by a guilty plea. See e.g. U.S. v. Reyes-Platero, 224 F.3d 1112 (9th Cir. 2000). Conversely, a guilty plea forecloses a claim of pre-plea ineffective assistance of counsel, which is unrelated to the plea itself. See Moran v. Godinez, 57 F.3d 690, 700 (9th Cir.1994).
b. 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.
"The law does not require counsel to raise every available nonfrivolous defense. Counsel also is not required to have a tactical reason—above and beyond a reasonable appraisal of a claim's dismal prospects for success—for recommending that a weak claim be dropped altogether." Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citations omitted).
Moreover, 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 (9th 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).
In arguing that counsel was ineffective for failing to present additional evidence, a petitioner may not leave the court to speculate about what the evidence might be. For example, a petitioner may not simply speculate about what a witness' testimony might have been, but must adduce evidence to show what it would have been. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). "[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).
More generally, conclusory allegations that are not supported by specific facts do not merit habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir.1994). Moreover, "[m]ere conclusory allegations do not warrant an evidentiary hearing." Shah v. U.S., 878 F.2d 1156, 1161 (9th Cir. 1989). 6. Application of Law
Here, Petitioner's claim concerns post-plea ineffective assistance of counsel, and thus is not waived merely by virtue of Petitioner's guilty plea.
The record shows that not only did Petitioner's trial counsel present Petitioner's physical and mental condition to the court at sentencing, but did so sufficiently that the trial court accepted the proposition that Petitioner suffered from those conditions. On this basis, the undersigned cannot find deficient performance by counsel.
Petitioner argues that a separate mitigation hearing should have been scheduled, presumably to present additional testimony on these issues. However, Petitioner fails to suggest what that evidence would have been, why counsel was deficient for failing to present it, or why it would have altered the outcome. Such conclusory allegations are not sufficient.
Even if this court could find some merit to Petitioner's claim, Petitioner fails to show how the state court's ruling was based on an unreasonable determination of the facts, or was contrary to or an unreasonable determination of Supreme Court law.
Accordingly, Ground 1(a) is without merit, and must be denied. C. MERITS OF GROUND 2(A) - IAC RE SENTENCING PREDICTION 1. Parties Arguments
In Ground 2(a), Petitioner argues that trial counsel advised Petitioner prior to entering into the plea agreement that he would be given a 7 to 10 year sentence, and that was based on counsel's experience. (Petition, Doc. 1 at "7", physical page 39.)
Respondents argue this claim is without merit, and the decision of the state court that it was of no merit was not contrary to or an unreasonable application of Supreme Court law. (Answer, Doc. 9 at 24-27.)
Petitioner does not reply on the merits of this claim. 2. Factual Background
Petitioner entered into a written Plea Agreement which reflected that the discharge of a firearm count had a sentencing range of 7 to 21 years, with a presumptive sentence of 10.5 years, and the aggravated assault had a sentencing range of 5 to 15 years, with a presumptive sentence of 7.5 years. (Exhibit J at 1.) Petitioner initialed that provision of the plea agreement. (Id.)
At the change of plea hearing, Petitioner advised the court that he had read and signed the plea agreement, and initialed each of the paragraphs, and that it "contain[ed] everything that [he had] agreed to with the State." (Exhibit L, R.T. 7/19/12. at 7.)
THE COURT: Has anyone promised you anything other that
what is contained in the plea agreement to get you to plead guilty?(Id. at 9.) The court then reviewed the sentencing range and presumptive sentences for the offenses. (Id. at 10.)
THE DEFENDANT: No.
THE COURT: Your agreement with the State is that you go to prison on each count and they will run concurrently so do you understand you face basically between 7 and 21 years in prison?(Id. at 11.)
THE DEFENDANT: Yes.
Petitioner was sentenced to an aggravated sentence of 18 years on the discharge of a firearm, and a concurrent aggravated sentence of 12 years on the aggravated assault, for an effective sentence of 18 years in prison. (Exhibit P, Sentence.) 3. State Court Ruling
Petitioner raised this claim in his PCR proceeding. (Exhibit DD, PCR Pet., Exh. 1, Affidavit at 1.) The Arizona Court of Appeals summarized the PCR court's ruling:
Galeazzi then filed a pro se petition claiming his trial counsel had been ineffective by ... informing him he would receive only a seven- to ten-year prison term...The trial court summarily denied relief, concluding Galeazzi had not demonstrated counsel fell below prevailing professional norms ... [and] noted that, even if counsel gave Galeazzi incorrect advice about the possible prison term, the court had nonetheless correctly advised Galeazzi during the plea colloquy.(Exhibit KK, Mem. Dec. at ¶3.) As with the claim in Ground 1(a), the Arizona Court of Appeals adopted the PCR court's determination. (Id. at ¶ 4.) 4. Applicable Law
At the outset, it must be noted that there is nothing wrong with defense counsel advising a client of the possible consequences of a case. See United States v. Ulano, 468 F. Supp. 1054, 1067 (C.D. Cal. 1979), aff'd, 614 F.2d 1257 (9th Cir. 1980). Moreover, in U.S. vs. Garcia, 909 F.2d 1346 (9th Cir. 1990) the Ninth Circuit held that an erroneous prediction of a sentence by a defense attorney did not rise to the level of constitutional deficient representation, and thus did not render a plea based upon such erroneous prediction involuntary.
Cases both prior to and since Garcia have differentiated between simple errors in predictions and a gross mischaracterization of the likely outcome. For example, in U.S. vs. Michlin, 34 F.3d 896 (9th Cir. 1994) the Ninth Circuit recognized that the court has "held that 'an erroneous prediction by defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea,' although an exception might be made in a case of 'gross mischaracterization of the likely outcome.'" Michlin, 34 F.3d at 899 (citations omitted).
In Iaea vs. Sunn, 800 F.2d 861(9th Cir. 1986) defense counsel represented to the defendant that a guilty plea would give him a chance to receive probation. That advice was defective because of mandatory minimum sentences which resulted in his receiving life sentences. The court found that such a gross mischaracterization (probation v. life sentences) established defective performance by counsel and remanded the case for a determination on the prejudice component of the ineffective assistance claim. Id. at 865-66. See also Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990), cert. denied, 499 U.S. 940 (1991)(no ineffectiveness where actual sentence was three years longer than attorney predicted).
In contrast, in Womack v. Del Papa, 487 F.3d 998 (9th Cir. 2007), counsel had predicted a sentence upon pleading guilty of 30 to 40 years, and instead the defendant received eight life terms without parole. The Ninth Circuit distinguished Iaea, and found the plea nonetheless voluntary. 5. Application of Law
Here, Petitioner's Ground 2(a) relates to counsel's advice in the course of inducing Petitioner to enter in to the guilty plea. Thus, if found meritorious, it could render Petitioner's plea involuntary. Thus, it is not waived merely by virtue of Petitioner's guilty plea.
However, to the extent that Petitioner intends to argue that counsel advised him that he could only be sentenced to a maximum of ten years, such a contention is in direct opposition to the written terms of the Plea Agreement, which Petitioner acknowledged reading, signing and initialing, and to Petitioner's own statements at the plea colloquy. Petitioner posits no reason that this court should credit his current contrary assertions to his earlier representations. "In assessing the voluntariness of the plea, statements made by a criminal defendant contemporaneously with his plea should be accorded great weight. Solemn declarations made in open court carry a strong presumption of verity." Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986).
Rather, Petitioner's real argument seems to be that counsel simply offered a prediction that Petitioner would be sentenced to 7 to 10 years. Counsel was not deficient in offering such a prediction, and the difference between counsel's prediction (7 to 10 years) and Petitioner's actual sentence (18 years) was not a gross mischaracterization, but simply an erroneous prediction. Accordingly, it does not render Petitioner's guilty plea involuntary. See Michlin, 34 F.3d at 899.
Even if this court could find some merit to Petitioner's claim, Petitioner fails to show how the state court's ruling was based on an unreasonable determination of the facts, or was contrary to or an unreasonable determination of Supreme Court law.
Accordingly, Ground 2(a) is without merit, and must be denied. D. SUMMARY
Grounds 1(b) and 2(b) of Petitioner's Petition are procedurally defaulted, and must be dismissed with prejudice.
Grounds 1(a) and 2(a) of Petitioner's Petition are without merit and must be denied.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - 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.
Standard Not Met - 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 that Grounds 1(b) (IAC re expert) and 2(b) (IAC re aggravating factors) of the Petitioner's Petition for Writ of Habeas Corpus, filed July 22, 2016 (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that the remainder of Petitioner's Petition for Writ of Habeas Corpus, filed July 22, 2016 (Doc. 1), including Grounds 1(a) (IAC re mitigation) and 2(a) (IAC re sentencing prediction), be DENIED.
IT IS FURTHER RECOMMENDED that, 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 (9th 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). Dated: March 23, 2017
/s/_________
James F. Metcalf
United States Magistrate Judge 16-2510r RR 17 03 08 on HC.docx