Opinion
CV 22-01293 PHX SPL (CDB)
10-28-2023
Ever Gastelum-Garcia, Petitioner, v. State of Arizona, et al., Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles, United Stales Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN:
Petitioner Ever Gastelum-Garcia (“Garcia”) seeks federal habeas corpus relief from his state court convictions pursuant to 28 U.S.C. § 2254.
I. Background
The Arizona Court of Appeals described the testimony adduced at Garcia's trial and his sentencing as follows:
In June 2012, G.V. attended J.M.'s high school graduation. After the ceremony, G.V. and J.M. had J.M.'s mother's Chevrolet Tahoe and picked up four additional friends to look for a party. J.M. drove, J.C.R. sat as the front-seat passenger, R.M., D.C., and G.V. sat in the “middle seats, ” and J.J.R. sat alone in the “third row.”
The young men drove around throughout the night. At dawn, G.V. noticed a white Chevrolet Impala behind the Tahoe that quickly pulled up on the right side. As the Impala moved alongside the Tahoe, G.V. looked inside the Impala and saw Garcia, whom he recognized, holding a gun. Within thirty seconds, G.V. heard at least five gunshots and saw “the windows burst” and “explode[.]” Instinctively, he ducked down. When the gunfire ended, G.V. heard the Tahoe's engine “roaring” and noticed the vehicle veering out of its lane. He reached over the front seat in an attempt to take the steering wheel, but recoiled when he realized it and J.M. were covered in blood.
G.V. then saw a brick wall ahead, opened the nearest door, and dove on to the street. Afraid Garcia might circle back and shoot again, G.V. started walking on side streets to the nearby home of a cousin. Along the way, he met up with the other passengers from the Tahoe and they walked together to G.V.'s cousin's home.
Once there, however, none of them contacted the police. Instead, G.V. called another cousin, who picked them up and drove them back to the site of the shooting. By the time they arrived, police officers had taped off the area, and G.V. learned that J.M. had died. G.V. spoke with the police, telling them he recognized the shooter as Garcia. Later that day, G.V. positively identified Garcia from a photo line-up and Garcia was apprehended.
The State charged Garcia with one count of first-degree murder (Count 1-victim J.M.), one count of assisting a criminal street gang (Count 2), one count of drive-by shooting (Count 3), and five counts of endangerment (Count 4-victim G.V.; Count 5-victim D.C.; Count 6- victim J.C.R.; Count 7-victim R.M.; and Count 8-victim J.J.R.). The State also alleged aggravating circumstances.
At trial, Garcia testified that he shot at the Tahoe in self-defense. He explained that some of the occupants of the Tahoe had threatened him on multiple occasions, even shooting at him in one instance. Garcia testified that on the morning of the incident, the Tahoe drove aggressively toward him, causing him to fear that it might hit him from behind. The Tahoe then pulled next to the Impala on the left side and Garcia saw J.J.R. “throwing up gang signs” and then lean down. Fearing J.J.R. may be retrieving a gun, Garcia ducked and “fired a couple shots.” In a state of panic, Garcia then threw his firearm out the window and drove away.
After a thirteen-day trial, the jury acquitted Garcia on the count of assisting a criminal street gang and found him guilty of the remaining charges. The court sentenced Garcia to life with the possibility of release on the murder conviction; a concurrent, aggravated term of twenty-one years' imprisonment for the drive-by shooting conviction; and consecutive, aggravated terms of three years' imprisonment for each endangerment conviction. The court awarded Garcia 1, 090 days of presentence incarceration credit for the murder and drive-by shooting convictions.State v. Garcia, 2017 WL 2644315, at *1-2 (Ariz.Ct.App. June 20, 2017).
Garcia appealed, asserting: the trial court erred in admitting a portion of a video recording of Garcia's police interview wherein he discussed multiple guns found at his home; insufficiency of the evidence supporting his conviction on Count 8 (one of the endangerment counts); the trial court erred with regard to aggravation and mitigation of his sentence; and the trial court in calculating his presentence incarceration credit. (ECF Nos. 12-6 & 12-7). The appellate court determined the presentence credit was incorrectly calculated and that the trial court erred by imposing aggravated sentences on Counts 6, 7, and 8. See Garcia, 2017 WL 2644315, at *4-5. The appellate court remanded for correction of those errors and denied relief on all of Garcia's other claims. The Arizona Supreme Court denied a petition for review on February 14, 2018. (ECF No. 12-8 at 56).
Garcia sought state post-conviction relief and was appointed post-conviction counsel. In a petition (ECF No. 12-8 at 62-119) filed December 13, 2018, Garcia alleged he was denied the effective assistance of trial counsel. Garcia argued his trial counsel failed to explore inconsistencies in testimony which went to the witnesses' credibility. (ECF No. 12-8 at 72). Garcia further asserted his trial counsel “miss[ed] key witnesses that corroborate Ever's claims, ” i.e., Garcia's brother, another relative, a friend (Hernandez) and Garcia's girlfriend. (ECF No. 12-8 at 70-74). Garcia's post-conviction counsel argued: “Each witness personally witnessed threats or escalating displays of violence that Ever knew about before the incident. Each event makes Ever's reaction more credible, ” and also asserted that “some of their testimony is supported by corroborating evidence.” (ECF No. 12-8 at 74). Post-conviction counsel maintained: “Given the jury had to find reasonableness in a situation where no guns were recovered, these witnesses were vital to the case and could very well have changed the outcome of the verdict.” (Id.).
Attached to the petition for state post-conviction relief is the affidavit of Omar Hernandez. Hernandez owned the car Garcia was driving on the night of the shooting. Hernandez averred the car was distinctive and stated: “The only other person who drove my car was Ever so if I was not driving it, Ever was.” (ECF No. 12-8 at 92-93). Hernandez also stated that when he was driving the car about a week before the shooting:
When I pulled up to the intersection I had my window partially rolled down. A car pulled up on the side of me and I looked over and I thought they were friends just trying to say hi so I rolled down the window. When I looked over towards the car I saw there were a few guys flashing [gang signs] and pointing guns at me. They looked surprised when they saw me and they realized that I was not the person they were looking for.(ECF No. 12-8 at 93). Garcia testified that Hernandez was with him at the time of the shooting, but Hernandez was “laid out, ” i.e., drunk and asleep, in the car at the time of the shooting. (ECF No. 12-5 at 280-85).
Garcia's brother was a gang member with a criminal history and the other relative was on parole at the time of the shooting. Post-conviction counsel averred Garcia, the brother, and the other relative's “testimonies had independent corroboration to alleviate any trial counsel concerns.
In his post-conviction petition Garcia also asserted his trial counsel failed to investigate or present experts to corroborate Garcia's self-defense claim, i.e., a “gang expert” to place events into context, and a ballistics expert to “show that the government's conclusions were merely speculation, that it was less likely Ever fired the shot that killed Jose, and that friendly fire just as easily killed Jose [].” (ECF No. 12-8 at 70, 75). Garcia also alleged his trial counsel failed to call a reconstruction expert to support his spoilation claim regarding “releasing the vehicle, ” i.e., Garcia asserted that because the police released the vehicle shortly after the incident the defense was unable to perform a gunshot residue test on the Tahoe to establish whether or not shots were fired from inside the vehicle, including the shot that killed the victim. (ECF No. 12-8 at 76). Garcia asserted that because counsel failed to consult experts, the trial court did not have evidence which would have resulted in a Willits instruction, the affidavit of a qualified “gang expert, ” and the affidavit of a firearm and ballistics expert. (ECF No. 12-8 at 99-101, 103-09).
In State v. Willits, 96 Ariz. 184 (1964), the Arizona Supreme Court held the accused could receive an instruction informing the jury it may draw an adverse inference from the State's action if the State failed to preserve evidence that was potentially exonerating, .
On February 5, 2021, the state habeas trial court, which was also the convicting court, advised the parties it was “inclined” to set the matter for an evidentiary hearing, but due to the COVID pandemic it would instead elect “to conduct an informal conference” “to discuss logistics” for proceeding with a “contemplated” evidentiary hearing. (ECF No. 12-8 at 148). On March 2, 2021, without conducting an evidentiary hearing, the state habeas trial court denied all but one of Garcia's claims of ineffective assistance of trial counsel. The court denied “post-conviction relief for ineffective assistance of counsel on the claims relating to the Willits Instruction, the gang experts, and the failure to interview three of the four witnesses identified by Defendant.” (ECF No. 12-8 at 152-54). With about their credibility as witnesses with criminal history.” (ECF No. 12-8 at 73). Garcia had a juvenile record but no adult criminal history. regard to Garcia's ineffective assistance of counsel claim regarding Hernandez, the court granted Garcia leave “to amend his Petition to allow for any additional information that may be available regarding the link between assertions made by Mr. Hernandez and the actions taken by Defendant.” (ECF No. 12-8 at 154). The court set the matter for oral argument “solely on the issue of whether matters relating to Mr. Hernandez rise to the level of requiring this court to set an Evidentiary Hearing under Rule 33.13 of the Arizona Rules of Criminal Procedure .” (ECF No. 12-8 at 154) (italics in original).
Garcia's post-conviction counsel submitted additional briefing, and the court took the matter under advisement after conducting a hearing. The state habeas trial court denied relief on August 5, 2021. (ECF No. 12-8 at 172-77). Garcia did not seek review in the Arizona Court of Appeals.
In his amended § 2254 petition Garcia asserts:
1. The trial court abused its discretion by denying a motion to suppress evidence of multiple guns found in his home after the shooting.
2. Insufficiency of the evidence supporting his conviction on Count 8.
3. The sentencing court erred with regard to his sentences on Counts 6, 7, and 8.
4. The sentencing court abused its discretion by failing to properly evaluate his age at the time of the crimes in mitigation of his sentences.
5. The sentencing court erred in calculating his credit for presentence incarceration.
6. Trial counsel was ineffective for failing to call particular witnesses.
7. Trial counsel was ineffective for failing to call an expert witness on gangs.
8. Trial counsel was ineffective for failing to call a crime scene reconstruction expert.
9. “I am petitioning to the supreme court to please look into any and all errors that have taken place in all my motions; petitions, direct appeal, proceedings and Rule 32 process.” Garcia asserts “evidence was destroyed. Ids were tainted punishment was excessive. Due process of law was violated due to me not being able to reconstruct scene . . .” (ECF No. 7 at 20).
10. Ineffective assistance of trial counsel, direct appeal counsel and Rule 32 counsel in part or in whole failed to raise said claims that previous counsel did not ...” (ECF No. 7 at 21).
Respondent avers, inter alia, that Garcia's ineffective assistance of trial counsel claims are procedurally defaulted because he failed to seek review of the claims in the Arizona Court of Appeals. Broadly construing his reply, Garcia contends any failure to present his federal habeas claims to the Arizona Court of Appeals was due to ineffective assistance of post-conviction counsel.
II. Analysis
A. Governing Law
1. Exhaustion and Procedural Default
Absent specific circumstances the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See O 'Suilivan v. Boerckei, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Paimateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test of the exhaustion requirement is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
A petitioner has not exhausted a federal habeas claim if he still has the right to raise a previously-unpresented claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id. at 92.
Relief on the merits of a federal habeas claim is properly denied when the petitioner's claim is procedurally barred from merits review, i.e., when the petitioner procedurally defaulted their claim in the state courts. A claim is procedurally barred when the petitioner failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so. See, e.g., Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). A procedural default occurs when a petitioner has never presented a federal habeas claim in state court and he is now barred from doing so by the state's procedural rules, including rules regarding waiver and the preclusion of claims. E.g., Castille, 489 U.S. at 351-52. In Arizona, claims not previously presented to the state courts in either a direct appeal or on collateral review are generally barred from federal habeas review, because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive Rule 32 action is permitted. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) & (b). Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims bar Garcia from now returning to the state courts to exhaust any unexhausted federal habeas claims, he has exhausted, but procedurally defaulted, any claim not previously fairly presented to the Arizona Court of Appeals in his appeal or post-conviction petition. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). See also Stewart v. Smith, 536 U.S. 856, 860 (2002).
If a petitioner procedurally defaulted his federal habeas claims in the state courts he is not entitled to a review of the merits of the claims by the federal habeas court absent a showing of cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of the defense's control, and “prejudice” is actual harm resulting from the alleged constitutional violation. E.g., Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). Both cause and prejudice must be shown to excuse a procedural default. E.g., id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. E.g., Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Atwood v. Ryan, 870 F.3d. 1033, 1059-60 (9th Cir. 2017); Cooper, 641 F.3d at 327. A petitioner meets the “fundamental miscarriage of justice” exception only by “establishing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted and emphasis added).
Garcia does not assert his factual innocence of the crimes of conviction, i.e., he does not contend that he did not shoot from the Impala in the direction of the Tahoe or that the driver of the Tahoe was killed, but instead he argues his legal innocence, i.e., that he acted only in self-defense. Accordingly, the procedural default of any federal habeas claim may be overcome only by establishing cause for, and prejudice arising from this default.
2. Standard of review regarding properly exhausted claims for relief
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court unless the state court's decision denying the claim was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, '” or was “‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if the state court applied a rule contradicting the governing law established by the United States Supreme Court, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). Furthermore, the state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012).
An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “‘A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'” Woods v. Etherton, 578 U.S. 113, 116-17 (2016), quoting Harrington, 562 U.S. at 101. “Deciding whether a state court's decision involved an unreasonable application of federal law or was based on an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons- both legal and factual-why state courts rejected a state prisoner's federal claims ...” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018) (internal quotations omitted).
B. Analysis of Petitioner's claims for relief
1. Denial of motion to suppress
Garcia contends the trial court abused its discretion and violated his right to due process of law by denying his motion to suppress evidence that multiple guns belonging to his brother were found at his house, arguing the evidence should not have been admitted because the guns were not connected to the shooting and did not belong to Garcia. Garcia maintains the evidence was wrongfully admitted because “there was sufficient other available evidence to ‘tell the story' of his vacillations during [his] interrogation, ” and the evidence was “otherwise irrelevant.” (ECF No. 7 at 5). He asserts there was a reasonable probability the jury found him guilty by virtue of “association with his brother, rather than acting in self-defense.” (Id.).
Garcia initially denied any knowledge of the shooting when questioned by law enforcement.
Garcia properly exhausted this claim in the state courts. In his appeal Garcia alleged the trial court abused its discretion by denying a motion to suppress “the evidence of multiple guns found at his home because the guns were not connected to the shooting and were not determined to belong to [Garcia].” (ECF No. 12-6 at 4, 47). Appellate counsel argued there was a reasonable probability the jury “might have reached a different verdict about Ever's state of mind had they not been told about his brothers' home arsenal, ” and that allowing this evidence “denied [Garcia] due process.” (ECF No. 12-7 at 2).
The Arizona appellate court found and concluded:
On this record, and considering the nature and context of the assumed error, we conclude beyond a reasonable doubt that the admission of the portion of Garcia's interrogation video relating to the guns seized at his home did not contribute to or affect the jury's verdicts on the murder, drive-by shooting, and endangerment charges. See State v. Bible, 175 Ariz. 549, 588 (1993) (“Error, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict.”); cf. State v. Dann, 205 Ariz. 557, 570, ¶ 44 (2003) . . .Garcia, 2017 WL 2644315, at *2-4.
The appellate court's denial of this claim for relief was not clearly contrary to nor an unreasonable application of federal law. “A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005). See also Williams v. Stewart, 441 F.3d 1030, 1040 (9th Cir. 2006). “The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal citations and quotations omitted). See also Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). A federal court may grant habeas relief based on an alleged state court evidentiary error only if the petitioner establishes the error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). The petitioner must establish “actual prejudice, ” not just a “reasonable possibility” that the alleged trial court error contributed to the verdict. Id. Cf. Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) (“[T]he admission of the challenged evidence did not violate [the petitioner's] due process rights” because “[e]ven if the admission of the [evidence] was improper, the error could not have had ‘a substantial and injurious effect on the jury's verdict.'” (citation omitted)).
The sole question for the jury in this matter was the issue of self-defense. Garcia testified extensively regarding his brother's involvement with gangs, his own impression of his brother's gang activities, his own lack of involvement in gang activity, and his attempts to avoid any type of confrontation with gang members. The jury found Garcia not guilty of promoting gang activity and, accordingly, it appears the jury's verdict regarding the other charged counts was not affected by the evidence that guns belonging to his brother were found in a home where Garcia was living. Accordingly, the state court's denial of this claim for relief was not clearly contrary to nor an unreasonable application of federal law.
2. Sufficiency of the evidence regarding Count 8
Garcia asserts there was insufficient evidence of his guilt of on the charge of endangerment as to one victim, due to “confusion surrounding the victim's identity” and insufficient evidence that this victim was actually in the vehicle at the time of the shooting. Garcia properly exhausted this claim. In his appeal Garcia asserted there was “insufficient evidence to find [him] guilty of endangerment Count 8, given the confusion surrounding that victim's identity and the [dearth] of evidence that he was in the vehicle at the time of the shooting.” (ECF No. 12-6 at 4, 47). Appellate counsel argued the trial court erred by denying trial counsel's motion for a judgment of acquittal as to Count 8, citing state court cases quoting Jackson v. Virginia, 443 U.S. 307 (1979). (ECF No. 12-7 at 6-7).
“A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence . . ..” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011) (internal quotations omitted). The governing federal law regarding an insufficiency of the evidence claim is stated in Jackson. A federal court may overturn a state court decision pursuant to Jackson only if the state court decision was “objectively unreasonable.” See Cavazos v. Smith, 565 U.S. 1, 2 (2011). This “double dose of deference . . . can rarely be surmounted.” Boyer, 659 F.3d at 964. See also Coleman v. Johnson, 566 U.S. 650, 651 (2012) (“We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.”). In considering an insufficiency of the evidence claim the federal habeas court must assume the trier of fact resolved any evidentiary conflicts in favor of the prosecution and must defer to such resolution. Generally, the credibility of witnesses is beyond the Court's review of the sufficiency of the evidence. See Schlup v. Delo, 513 U.S. 298, 330 (1995). Even when the evidence is “almost entirely circumstantial and relatively weak, ” it may be sufficient to support a conviction. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).
In denying this claim, the state appellate court found and concluded:
... Garcia does not dispute that he endangered the lives of each passenger in the Tahoe. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1201(A) (“A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury.”). Instead, he argues the State failed to prove that J.J.R. was a passenger, suggesting there were only four endangerment victims. Section 13-1201, however, “does not require or imply that the name or exact identity of the victim is a necessary element of the offense.” State v. Villegas-Rojas, 231 Ariz. 445, 448, ¶ 8 (App. 2012). Nonetheless, the number of endangerment convictions obviously cannot exceed the number of passengers that were in the Tahoe at the time of the shooting.
At trial, a man who was driving a delivery truck when he witnessed the Tahoe's “dramatic stop” testified to seeing three individuals emerge from the vehicle. Adding the victim who was killed and G.V., Garcia contends this evidence demonstrates that only five men occupied the vehicle at the time of the shooting. R.M. testified there were six people in the Tahoe, including four in the back seat, and he identified J.J.R. and J.C.R. as two different individuals. G.V. testified there were six people in the Tahoe: J.M. and J.C.R. in the front; he, R.M., and D.C. in the back “middle seats;” and J.J.R. alone in the back “third row.” Garcia, however, argues that G.V. only identified five people in the Tahoe when he initially spoke to police officers, and did not mention J.J.R.
The trial record reveals some confusion regarding the identity of the passengers. The victim in Count 6, J.C.R., and the victim in Count 8, J.J.R., share similar names. Further, J.J.R. was referred to as both “Juan R.” and “Jose R.” In response to a juror's question, the parties stipulated that “Jose R. ... is actually Juan R.” J.C.R. and J.J.R. are not the same person. The prosecutor referenced this confusion during closing argument, while explaining where each passenger sat in the vehicle:
The front passenger, [J.C.R.]. There's also in the middle row, there's [R.M., D.C., G.V.]. And then in the back seat, and this is the infamous how many ways can we say your name Juan R., Juan
Carlos-or excuse me, Jose R., Juan Jose R. And that's where the confusion might have been on some of your parts is that his middle name was Jose and sometimes he goes by Jose.
Notwithstanding the confusion, G.V. and R.M. unequivocally testified that there were six people in the Tahoe. Moreover, although G.V. initially identified only five occupants to police, failing to mention J.J.R., the officer who spoke with G.V. testified that he also interviewed J.J.R. and confirmed he was in the Tahoe that night.Garcia, 2017 WL 2644315, at *3-4.
The appellate court's denial of this claim was not objectively unreasonable. The Arizona Court of Appeals considered all of the evidence presented at trial and reasonably concluded there was sufficient evidence, regardless of any confusion as to the identity of the victim in Count 8, to establish that there were six individuals in the Tahoe on the night and at the time in question.
3. Sentencing error regarding aggravating factors
Garcia alleges the trial court erred by sentencing him to the maximum terms on Counts 6, 7, and 8, arguing that no aggravating factors were available to the court under Arizona Revised Statutes § 13-704.
Garcia raised this claim on appeal, arguing the jury's “finding of ‘[d]angerous' could not be used” to aggravate his sentences pursuant to Arizona Revised Statutes § 13704, and the jury's finding of “not proven” “as to the aggravator ‘harm' on Counts 6, 7, and 8 disallows the trial court from using ‘harm' to aggravate the sentences on those counts.” (ECF No. 12-6 at 5, 47). The Arizona Court of Appeals agreed with Garcia that the trial court erred in imposing aggravating sentences on Counts 6, 7, and 8, and remanded for resentencing. See Garcia, 2017 WL 2644315 at *4-5.
In their response in this matter, docketed October 28, 2022, Respondents assert:
Although the superior court has yet to resentence Garcia on Counts 6 8, Respondents have notified the Maricopa County Attorneys' Office, and assigned counsel has contacted the superior court and will be filing the necessary motion to ensure a resentencing occurs pursuant to the Arizona court of appeals' order. Once this resentencing occurs, Respondents will file a motion to supplement with the sentencing order.(ECF No. 12 at 8 n.3).
On October 19, 2023, Respondents were ordered to file a status report regarding Garcia's resentencing per the 2017 remand from the Arizona Court of Appeals. Respondents filed a report advising that resentencing had not been completed but the matter had been reassigned to a new judge. (ECF No. 20). Respondents aver they will file another status report by November 30, 2023, to provide details about the resentencing.
4. Consideration of age as a mitigating fact at sentencing
Garcia contends the sentencing court abused its discretion by failing to consider his age (19 at the time of the crime) as a mitigating factor in determining his sentence. Garcia raised this claim in his appeal. (ECF No. 12-6 at 6, 47). He asserted the sentencing court noted his age at the time of the crime but then “negated the fact of Ever's age at the time of the commission of the crime as a mitigating factor .” (ECF No. 12-7 at 16-17). Quoting a state court opinion, counsel asserted the sentencing “process” did not “satisfy the requirements of the Due Process Clause.” (ECF No. 12-7 at 17).
The Arizona Court of Appeals denied relief, finding and concluding:
.. .At sentencing, the court acknowledged that Garcia's age at the time of the shooting, nineteen years old, was “a factor in this matter.” The court then noted, however, that Garcia had fathered five children, four of whom had been born at the time of the murder, and through that life experience, had “moved ... beyond [his] age.” Indeed, because Garcia had taken on the adult responsibility of parenthood, the court concluded his age did not merit a mitigated sentence.
The trial court's finding is consistent with Garcia's own trial testimony. Acknowledging his previous gang affiliation, Garcia explained that, after having his first child, he distanced himself from the gang-related activities of others, and instead focused “on what [he] needed to do and not what [he] wanted to do.” Garcia also testified that fatherhood had changed his life, requiring him to take responsibility and support his children. Because the record reflects that the court considered the relevant mitigation and aggravation evidence, including Garcia's age, he has not shown the court abused its discretion.Garcia, 2017 WL 2644315, at *5.
A federal habeas court is “bound by a state court's construction of its own penal statutes.” Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). See also Missouri v. Hunter, 459 U.S. 359, 366 (1983). Furthermore, even if the sentencing court erred, “[a]bsent a showing of fundamental unfairness, [even] a state court's misapplication of its own sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). See also Cacoperdo v. Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994) (holding the petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (concluding the defendant's claim that the state court was required to merge his convictions was not cognizable); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the petitioner's claim that the trial court violated a provision of state law in sentencing him was not cognizable). Accordingly, Garcia's sentencing claim fails because a challenge to a state court's application of state sentencing laws does not create a federal question cognizable in federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992) (“[a]s the Supreme Court has stated time and again, federal habeas corpus relief does not lie for errors of state law”); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989).
This claim regarding the state court's application and compliance with state sentencing statutes presents an issue which is not cognizable in a § 2254 action.
5. Calculation of credit for pre-sentence incarceration
Garcia contends the trial court erred in determining the number of presentence incarceration days credited to his sentence. Garcia raised this claim in his appeal. (ECF No. 12-6 at 6, 47). The appellate brief does not mention a federal constitutional right or any federal court opinion, but instead contends the failure to award Garcia credit for 1, 091 days of pre-sentence incarceration (one more day than the sentencing court awarded) was fundamental error and constituted an “illegal” sentence. (ECF No. 12-7 at 21-22). Because the claim was not presented as a federal constitutional claim, the claim was not properly exhausted and is procedurally defaulted.
Nonetheless, on appeal the State conceded, and the state appellate court agreed, that Garcia was entitled to 1, 091 days of pre-sentence incarceration credit on his sentences for the murder and drive-by shooting convictions, i.e., one more day than he was originally credited. The Arizona Court of Appeals stated: “We modify his sentence to reflect 1, 091 days of presentence incarceration credit on Counts 1 and 3.” Garcia, 2017 WL 2644315, at *5. Even if the claim is cognizable, relief on this claim is moot.
6. Ineffective assistance of counsel - failure to investigate and call witnesses
Garcia contends his trial counsel was ineffective for failing to investigate, conduct interviews, and call witnesses who would corroborate Garcia's self-defense claim.
To establish an ineffective assistance of counsel claim, a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). It is the petitioner's burden to demonstrate both prongs of the Strickland test. E.g., Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). With regard to the performance prong of the Strickland test, the petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. See Strickland, 466 U.S. at 687. And it is well settled that “counsel's tactical decisions at trial .. are given great deference and must [] meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006). To establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This standard for assessing prejudice requires a substantial, not just “conceivable, ” likelihood of a different result. Id. at 693. See also Sanchez v. Davis, 994 F.3d 1129, 1139 (9th Cir. 2021), cert. denied sub nom., Sanchez v. Broomfield, 143 S.Ct. 355 (Oct. 17, 2022).
Garcia did not fully exhaust his ineffective assistance of trial counsel claims by appealing the state habeas trial court's denial of relief to the Arizona Court of Appeals, i.e., Garcia did not “fairly present” the claims to the state's “highest court” in a procedurally correct manner. Because Arizona's rules regarding waiver, preclusion, and the timeliness of claims bar Garcia from returning to the state courts to present the claims to the state appellate court, the claim is procedurally defaulted.
Broadly construing his § 2254 pleadings, Garcia asserts cause for his procedural default of his ineffective assistance of trial counsel claims, i.e., he alleges his post-conviction counsel was ineffective for failing to appeal the habeas trial court's denial of relief to the Arizona Court of Appeals. (ECF No. 17 at 4).
Pursuant to the United States Supreme Court's opinion in Martinez v. Ryan, 566 U.S. 1 (2012), a habeas petitioner may establish cause and prejudice for the procedural default of a claim of ineffective assistance of trial counsel by demonstrating that their postconviction counsel was ineffective and the underlying ineffective assistance of trial counsel claim has some merit. See Atwood, 870 F.3d at 1059-60; Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). To establish “prejudice” under the second prong of Martinez's “cause and prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance of trial counsel claim is “substantial.” Martinez, 566 U.S. at 17. The Supreme Court has defined a “substantial” claim as one with “merit, ” noting a procedural default will not be excused if the underlying Strickland claim “is insubstantial, i.e., it does not have any merit or ... it is wholly without factual support.” Id. at 14-16. See also Lopez v. Ryan, 678 F.3d 1131, 1137-38 (9th Cir. 2012) (“Martinez requires that a petitioner's claim of cause for a procedural default be rooted in a potentially legitimate claim of ineffective assistance of trial counsel.” (internal quotations omitted)).
In evaluating whether the failure to raise a substantial claim of ineffective assistance of trial counsel in state court resulted from ineffective assistance of state habeas counsel under Strickland, we must evaluate the strength of the prisoner's underlying ineffective assistance of trial counsel claim. If the ineffective assistance of trial counsel claim lacks merit, then the state habeas counsel would not have been deficient for failing to raise it.
Further, any deficient performance by state habeas counsel would not have been prejudicial, because there would not be a reasonable probability that the result of the post-conviction proceedings would have been different if the meritless claim had been raised.Atwood, 870 F.3d at 1059-60. See also Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 2021), cert. denied, 142 S.Ct. 1376 (2022); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel who was not constitutionally ineffective.”).
The only claim regarding uncalled witnesses Garcia adequately presents in his habeas petition is with regard to Hernandez. In ultimately denying Garcia's claim that his trial counsel was ineffective for failing to interview and and call Hernandez as a witness, the state habeas trial court found and concluded:
... the crux of Defendant's argument is that there was ineffective assistance of counsel as a result of his trial counsel having failed to interview Omar Hernandez, a then-friend of Defendant. The claim further states that had the interview occurred, defense counsel would have learned that Mr. Hernandez had a run-in with the “victims” in this matter approximately one week before, wherein guns were brandished and Mr. Hernandez feared for his life. Further, Defendant maintains that before the incident in question, Mr. Hernandez communicated with him about the incident and resulting concerns. This could have been relevant and germane to Defendant's state of mind on the night of this incident because Defendant was driving the same Impala vehicle that Mr. Hernandez was driving when the prior alleged threat occurred.
Despite the significant diligence on the part of [post-conviction counsel], they have been unable to secure the participation of or cooperation from Mr. Hernandez. It has been asserted that the failure is because Mr. Hernandez does not want to be labeled a “snitch” or that he is fearful of reengaging in this matter. Whatever the reasons may be, [post-conviction] counsel acknowledges that he does not have Mr. Hernandez as a witness nor does this court have an affidavit from Mr. Hernandez that would establish what he would testify to [at an evidentiary hearing], if called. As a result, the argument has morphed since first raised. This has led to what defense counsel has referred to as a “Plan B” argument.
In this alternative to support PCR relief, the argument is that trial counsel was ineffective because had trial counsel interviewed Mr. Hernandez, more would have been known in preparing Defendant to testify. Further, it is asserted that without having interviewed Mr. Hernandez,
defense counsel did not include in the trial testimony of Defendant any questions regarding the experience of Mr. Hernandez and how that impacted Defendant's state of mind on the night of the incident.
In assessing the issue, the court must acknowledge certain points relating to the trial. The trial in this matter presented numerous challenges, most relating to the alleged gang activity of the “victims” and the State's witnesses as well as to Defendant and those who were present with him. This not only created an environment for parts of the story to be less than accurately portrayed based upon perspectives and alliances, but may have also impacted the level of cooperation from all of the witnesses to the events in question. With that said, the case-in-chief, along with the claim of self-defense, was presented to the jury and they rendered a verdict. So, the question that follows is whether the issues identified regarding Mr. Hernandez might have impacted that verdict?
Under the initial argument presented by defense counsel, a colorable claim may have been present. Mr. Hernandez did not testify at trial. It appears that trial counsel for Defendant did not have Mr. Hernandez interviewed, and that flaw may have arguably been to the prejudice of defendant. However, those conclusions are based on Mr. Hernandez now being available to testify and portraying events as Defendant's counsel alleged in the [post-conviction] Petition. If that were the case, setting an evidentiary hearing on Defendant's [post-conviction] Petition could possibly be warranted to assess credibility of Mr. Hernandez as well as material facts regarding the possible links between his claims and Defendant's state of mind as part of his self-defense claim. But Mr. Hernandez is not available. He appears unwilling to testify or provide an affidavit and it would be speculation to assume what he might say or establish if he were willing to testify.
This requires the court to turn to the “Plan B” argument put forth by Mr. Heath [i.e., post-conviction counsel]. He maintains that the failure on the part of trial counsel to interview Mr. Hernandez compromised the testimony of Defendant at trial. Had Mr. Hernandez been interviewed, it is argued that trial counsel would have developed further testimony from Defendant at trial to include how Mr. Hernandez's experiences shaped the state of mind of Defendant. And this is where Defendant's petition fails.
Whether Mr. Hernandez was interviewed or not, and whether he was available to testify at trial or not, Defendant had full knowledge at the time of trial about what he claims he was told by Mr. Hernandez. Defendant did
not need Mr. Hernandez to be interviewed in order to testify that his self-defense claim was based, at least in part, on information he knew from Mr. Hernandez.
At its best, Mr. Hernandez told Defendant that he had an issue with these same “victims” a week earlier and that they threatened him. Further, and again at its best, Defendant would have been told that this same group of people were out to get Mr. Hernandez. Defendant may have further realized that he was driving the same Impala vehicle that the “victims” associated with their target, Mr. Hernandez. That could have heightened his need for vigilance for his own safety.
This is all stated as “at its best.” There is evidence from the record to suggest that Mr. Hernandez did not provide a direct link for Defendant as it relates to the “victims” and the State's witnesses to the incident that occurred one week earlier. In fact, he may have said that he could not specifically identify those present when he claims he was threatened by those in another vehicle. Additionally, he appears not to have described for Defendant that the other vehicle was a brown Chevy Tahoe, the vehicle occupied by the “victims” in this incident. If he had, that information may have formulated a basis for the increased concern on the part of Defendant when he claimed that other vehicle on the night of this incident was a brown Chevy Tahoe. Perhaps more importantly, the jury heard testimony directly from Defendant as to what formulated his alleged fear and the basis for his claim of self-defense. He included allegations that there had been direct threats made against him from the “victims” and the State's witnesses. He further testified as to some violent encounters that pre-dated the night in question. The jury heard all of this evidence. They voted unanimously to convict.
Under the “Plan B” argument, Defendant asserts that if Mr. Hernandez were interviewed, Defendant's trial counsel would have asked him questions at trial about Mr. Hernandez. The jury would then have heard how the threats to Mr. Hernandez contributed to Defendant's self-defense claim. However, if the jury rejected self-defense after hearing about direct threats to and violent contact with Defendant, it is quite difficult to assume that hearing about Mr. Hernandez's experience would have caused the jury to reach a different conclusion as to the self-defense claim.
Further, even without having interviewed Mr. Hernandez, there was nothing preventing Defendant from testifying as to how Mr. Hernandez's experience impacted Defendant's state of mind. With or without the interview of Mr. Hernandez, Defendant was not prevented from developing
fully his self-defense claim through his own testimony at trial, including testifying as to what Mr. Hernandez had told him.
... The original claim is that the failure to interview Mr. Hernandez was deficient enough to meet the Strickland standards for ineffective assistance of counsel. ... if Mr. Hernandez were available and willing to testify, there could be a basis to consider setting this PCR Petition for an evidentiary hearing to reconcile disputed material facts. That would allow the court to consider the reliability of the testimony and assess whether the failure to interview Mr. Hernandez was to the prejudice of Defendant.
The present claim does not come close to that conclusion. Mr. Hernandez has not testified nor has he supplied an affidavit as to what he discussed with Defendant. As such, Defendant has failed to establish that the failure to interview Mr. Hernandez served to prejudice Defendant in being able to testify as to his state of mind and the basis for his self-defense claim.(ECF No. 12-8 at 172-77).
Garcia's trial counsel, Ms. Llewellyn, died prior to his post-conviction proceedings. There is no evidence in the record regarding whether or not she actually interviewed Hernandez, but the trial transcripts demonstrate she was thoroughly familiar with all of the available evidence, including that Hernandez was present at the shooting.
Hernandez's affidavit, which is attached to the post-conviction petition, does not identify the individuals who threatened him as the same individuals involved in the shooting, nor that the individuals who threatened him were driving the same vehicle involved in the shooting.
Under the Martinez analysis, Garcia is unable to establish cause for or prejudice arising from his procedural default of this ineffective assistance of trial counsel claim because the underlying claim is not “substantial.” In the above-quoted, well-reasoned opinion, the state habeas trial court determined Garcia had not established trial counsel was ineffective for allegedly failing to interview Hernandez or call Hernandez as a witness. This determination was not clearly contrary to nor an unreasonable application of Strickland. The ultimate decision whether to call a particular witness at trial is well within counsel's “full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's decision ... not to put certain witnesses on the stand....”). Decisions regarding trial strategy and tactics rest with counsel, and the decision as to what witnesses to call is a tactical, strategic decision. See Bragg v. Galaza, 242 F.3d 1082, 1088-89 (9th Cir. 2001) (determining mere speculation that further investigation might lead to evidence helpful to the petitioner was insufficient to demonstrate ineffective assistance of counsel).
To succeed on a Strickland claim based on counsel's failure to obtain testimony, a petitioner may not use self-serving speculation to argue that a witness might have provided favorable testimony, but instead must adduce evidence to substantively show what the witness's testimony would have been. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[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.”). The affidavit of Hernandez presented to the state court is not of sufficient substance or specificity to establish that, had Hernandez testified to the content of the affidavit, or had counsel interviewed Hernandez if indeed she did not, this testimony or information would have swayed the jury's decision. As noted by the state court, Garcia himself testified at length regarding his previous encounters with those involved in the shooting, his understanding of the threats levied against him, his fear of an altercation with them, his efforts to avoid them, and what prompted him to shoot in the direction of the Tahoe. It is not clear that any additional information from Hernandez would have swayed the jury in light of the testimony offered by Garcia himself. Additionally, it is entirely possible counsel made a tactical decision not to present Hernandez as a witness because his testimony would have been cumulative, or because the State might have noted that at the time of the shooting Hernandez was “laid out” drunk in the Impala, or because Hernandez's own criminal history or potential gang involvement might have been used by the State to challenge the credibility of his testimony. In determining whether counsel was ineffective, tactical decisions of trial counsel deserve deference if counsel makes an informed decision based on strategic trial considerations and the decision appears reasonable under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). “[T]he relevant inquiry under Strickland is not what defense counsel should have pursued, but rather whether the choices made by defense counsel were reasonable.” Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998).
Furthermore, “complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what the witness would have testified are largely speculative.... In addition, for [a petitioner] to demonstrate the requisite Strickland prejudice, [he] must show not only that [the] testimony would have been favorable, but also that the witness would have testified at trial.” Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (citations omitted); see also United States v. Hardin, 846 F.2d 1229, 1231- 32 (9th Cir. 1988) (rejecting claim of ineffective assistance based on counsels' failure to call a witness who would have taken responsibility for a gun found in defendant's possession because, inter alia, “[t]here is no evidence in the record which establishes that [the potential witness] would testify in [petitioner's] trial.”). Given Hernandez's reluctance to come forth with a clearer statement of any relevant facts in his affidavit in the postconviction matter and his complete unwillingness to testify at a hearing in the postconviction matter, Garcia failed to establish that Hernandez would have testified at trial, particularly given the circumstance of the trial involving gang members.
Accordingly, post-conviction counsel's performance was not deficient for failing to raise this claim in the appellate court and Garcia was not prejudiced by any alleged deficiency because there is no reasonable reasonable probability the Arizona Court of Appeals would have rejected the habeas trial court's resolution of this claim. Any evidence from the witness(es) Garcia alleges counsel should have presented at trial would have been cumulative to Garcia's own testimony.
7. Ineffective assistance of counsel - gang expert
Garcia asserts his trial counsel was ineffective for failing “to call an expert that would have supported his theory of the case. Supporting facts: Trial counsel should have called a gang expert.” (ECF No. 7 at 18). Garcia raised this claim in his state postconviction action. The state habeas trial court denied the claim, concluding the claim was not colorable: “There were two experts who were called at trial to address gang-related issues. Defendant had the opportunity to develop fully any theories of the case and to the extent certain issues were or were not fully developed, that would fall into the category of ‘trial strategy' rather than ineffective assistance of counsel.” (ECF No. 12-8 at 153).
Although Garcia raised this claim in his state post-conviction action, the claim is procedurally defaulted because Garcia did not raise the claim in a petition for review to the state's “highest court, ” i.e., the Arizona Court of Appeals. Garcia fails to show cause for or prejudice for the default, as he cannot establish, under Martinez, that his post-conviction counsel's failure to raise the claim in the appellate court was deficient or prejudicial. Trial counsel did call two gang experts to testify at Garcia's trial. A review of the testimony of the defense's gang experts indicates they were questioned regarding associate versus active gang membership (ECF No. 12-5 at 6, 133), and the jury found Garcia did not commit the crimes of conviction in furtherance of a criminal street gang, i.e., the jury found for Garcia on the issue as to his gang involvement at the time of the crimes. Accordingly, Garcia is unable to establish he was prejudiced by his post-conviction counsel's failure to raise the claim in the appellate court in his post-conviction proceeding or that his trial counsel's performance was, in fact, deficient.
8. Ineffective assistance of counsel - crime scene reconstruction expert
Garcia raised this claim in his state post-conviction action, and the state habeas trial court denied relief. The claim was not properly exhausted and is procedurally defaulted because the claim was not presented to the Arizona Court of Appeals. As with his other ineffective assistance of trial counsel claims, because the record demonstrates trial counsel's performance was neither deficient in her choice of a trial strategy nor prejudicial with regard to the outcome of Garcia's criminal proceedings, Garcia is unable to establish any prejudice arising from post-conviction counsel's failure to pursue this ineffective assistance claim in a petition for review to the Arizona Court of Appeals which would overcome his procedural default of the claim under Martinez.
In denying this claim the state habeas trial court found and concluded:
This claim centers on the victim's vehicle. It is undisputed that the vehicle, which had been in police custody, was released before Defendant had the opportunity to inspect it or have it available for expert analysis. During the proceedings, Defendant's trial counsel made a timely request for a Willits Instruction. When raised, this court noted that the appropriateness of the instruction would be determined at the close of evidence and directed
defense counsel to raise the issue at that time. When the Court and the parties were addressing the drafting of the final jury instructions, Defendant's counsel did not then raise the request again, thereby waiving the claim.
A pivotal question posed is whether the failure to raise the request, as directed, serves as evidence of ineffective assistance of counsel. While it likely should have been raised again, the evidence at trial certainly cast questions as to whether the preservation of the vehicle would have advanced the defenses asserted by Defendant. But even if counsel's performance was deficient by not raising the request at the close of evidence, there is no basis to conclude that it served to deny Defendant a fair trial or, in other words, served to his prejudice. While not stated as a limitation, Defendant's case centered largely on self-defense or fear for his safety and no nexus has been demonstrated as to how any expert analysis of the vehicle would have furthered that defense. Claims that the measured trajectory of bullets would have helped prove the defense is, at best, conjecture. This does not even approach the requirement of the second prong Strickland relating to prejudice at a level that would have influenced the outcome.(ECF No. 12-8 at 152) (emphasis added).
Trial counsel made a reasoned strategic decision to pursue a theory of self-defense at Garcia's trial, which was not unreasonable given Garcia's recorded admission that he fired several shots at the Tahoe. Counsel's strategic decisions, such as the choice of what defense to pursue at trial, are entitled to deference by a habeas court. Additionally, as the state habeas trial court noted, because any expert testimony from a crime-scene expert would not likely have bolstered a self-defense theory, the alleged failure to call such an expert did not affect the outcome of Garcia's trial. Accordingly, Garcia cannot establish his state post-conviction counsel's performance was ineffective under Martinez, excusing his procedural default of this claim, because there is no reasonable probability that, had this claim been presented to the appellate court, the appellate court would have decided the issue differently than the state habeas trial court.
9. Due process claims
Garcia contends he is
.. petitioning to the supreme court to please look into any and all errors that have taken place in all my motions; petitions, direct appeal, proceedings and Rule 32 process. To my knowledge evidence was destroyed. Ids were tainted
punishment was excessive. Due process of law was violated due to me not being able to reconstruct scene or unable to examine evidence being presented against me, therefore, my defense was crippled due to the states discretion. [sic](ECF No. 7 at 20).
The factual and legal basis for this claim for federal habeas relief is not clear. Additionally, other than the specific claims discussed supra, Garcia did not present any of the discreet claims presented in his ninth claim for habeas relief to the state courts in his appeal or his Rule 32 action. Accordingly, this claim of violation of Garcia's due process rights is procedurally defaulted. Garcia does not offer cause for, or prejudice arising from his procedural default of this claim for relief.
Furthermore, a defendant's complaints about asserted errors in the state postconviction process may not be considered on federal habeas review. See, e.g., Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Franzen v. Brinkman, 877 F .2d 26, 26 (9th Cir. 1989) (“a petition alleging errors in the state postconviction review process is not addressable through habeas corpus proceedings”). Additionally, this claims is repetitive or cumulative of Garcia's other claims for relief. Moreover, a thorough review of the record indicates that Garcia's trial counsel, appellate counsel, and post-conviction counsel were all thoroughly familiar with the facts of the case; his trial counsel ably and thoroughly asserted and argued issues regarding identifications and the Willits issue, and trial counsel ably cross-examined the State's witnesses and examined the defense's witnesses, including Garcia. Garcia's appellate counsel raised colorable claims on appeal and was successful with regard to Garcia's argument regarding accurate credit for presentence incarceration and improper aggravation of his sentences on Counts 6, 7 and 8. Garcia's post-conviction counsel vigorously argued his claims of ineffective of trial counsel and extensively pursued his claim regarding the alleged failure to have Hernandez testify at trial.
10. Ineffective assistance of trial, appellate, and post-conviction counsel
Garcia contends his trial counsel, appellate counsel, and post-conviction counsel were ineffective by failing in part or in whole to raise claims that previous counsel did not assert, including claims regarding destruction of evidence, tainted identifications, excessive sentence, the trial court's failure to appoint a crime scene reconstruction expert, and counsel's failure to examine evidence and conduct an investigation.
Garcia did not properly exhaust a claim of ineffective assistance of appellate counsel in the state courts by asserting such a claim in his post-conviction action. Nor has he stated a cognizable claim of ineffective assistance of post-conviction counsel; as discussed supra, post-conviction counsel's failure to present any claims of ineffective assistance of trial counsel to the state appellate court was not prejudicial to Garcia.
Also discussed supra, Garcia's trial counsel, appellate counsel, and post-conviction counsel did raise claims regarding the destruction of evidence (trial counsel argued a Willits motion and post-conviction counsel asserted trial counsel was ineffective for failing to renew the Willits motion); tainted identification (an issue thoroughly argued by trial counsel at a Dessureault hearing and at trial); imposition of an excessive sentence (raised by appellate counsel); the absence of a crime scene reconstruction expert (argued by postconviction counsel). Garcia is unable to establish cause for or prejudice arising from his failure to exhaust any further claims, i.e., that counsel failed to examine evidence or failed to adequate investigate the circumstance of his case, because the record in this matter demonstrates that his trial counsel thoroughly investigated his case, was familiar with all of the evidence, made reasonable strategic decisions and presented a reasonable defense on Garcia's behalf.
See ECF No. 12-1 at 23-32.
See State v. Dessureault, 104 Ariz. 380 (1969). See also ECF No. 12-4 at 82-215.
III. Conclusion
The Arizona Court of Appeals' denial of Garcia's properly exhausted federal habeas claims was not clearly contrary to nor an unreasonable application of federal law. Garcia failed to properly exhaust his ineffective assistance of trial counsel claims by fairly presenting the claims to the Arizona Court of Appeals in a procedurally correct manner. Garcia fails to establish cause for and prejudice arising from his procedural default of his claims pursuant to Martinez, and he does not assert or present any evidence supporting a claim of actual, factual innocence.
IT IS THEREFORE RECOMMENDED that the amended petition seeking a federal writ of habeas corpus at ECF No. 7 be DENIED.
However, IT IS FURTHER RECOMMENDED that if Respondents do not establish Garcia has been resentenced on Counts 6, 7, and 8 as of the time the Court considers this Report and Recommendation, the Court order the state trial court to immediately comply with the appellate court's remand for resentencing on Counts 6, 7, and 8.
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.
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. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Garcia seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.