CV 19-08155-PCT-DGC (MHB) (D. Ariz. May. 26, 2021)

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Guinard v. Shinn

United States District Court, District of Arizona

May 26, 2021

CV 19-08155-PCT-DGC (MHB) (D. Ariz. May. 26, 2021)

Opinion

CV 19-08155-PCT-DGC (MHB)

05-26-2021

Jimmy Wayne Guinard, Petitioner, v. David Shinn, et al., Respondents.

Honorable Michelle H. Burns, United States Magistrate Judge.

TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:

AMENDED REPORT AND RECOMMENDATION

Honorable Michelle H. Burns, United States Magistrate Judge.

Petitioner Jimmy Wayne Guinard, who is confined in the Arizona State Prison Complex-Douglas, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and supplement (Docs. 1, 6). Respondents filed an Answer, and Petitioner filed a reply. (Docs. 12, 21, 22.)

On September 29, 2020, this Court issued a Report and Recommendation recommending that the habeas petition be denied. (Doc. 23.) After considering Petitioner's objections, the District Court issued an Order on December 10, 2020, referring this matter to this Court to issue an amended report and recommendation to include the following supplemental claims not considered in Respondents' Answer or this Court's September 29, 2020 Report and Recommendation: Grounds 5(j)-(s); 8(g)-(i); 9(j)-(r); 16(a)-(o); 17(a)-(d), 19(a)-(h); and 20(a)-(j). (Docs. 32, 6.)

Thereafter, pursuant to this Court's Order, Respondents filed a Supplemental Answer addressing the claims identified by the District Court's December 10, 2020 Order, and Petitioner filed a Reply to Respondents' supplement on February 11, 2021. (Docs. 36, 37.)

BACKGROUND

Petitioner challenges his convictions in two different Yavapai County Superior Court cases.

In the first case, #CR201101146 (“first case” or “2011 case”), Petitioner was convicted by jury trial of two counts each of transportation of dangerous drugs for sale and possession of drug paraphernalia, and was sentenced to an aggregate 20-year term of imprisonment. See State v. Guinard, 2014 WL 2548104, at *1 (Ariz.Ct.App. June 3, 2014). The facts of the 2011 case reveal that “[a]n informant working with sheriff's deputies purchased methamphetamine from Guinard on two separate dates.” Id. The informant, who was previously arrested for selling methamphetamine, made a deal where he agreed to engage in “controlled buys” with drug dealers in exchange for a reduced sentence. (Exh. G.) While wearing a body wire, the informant made two controlled buys from Petitioner - one on July 14, 2011 and another on July 19, 2011. (Exh. G.) On the audio recording from the wire, Petitioner's voice was identified by the informant, and laboratory testing confirmed that the baggies the informant obtained from Petitioner during the controlled buys contained methamphetamine. (Exh. G.)

Petitioner filed a timely appeal, arguing: (a) that the State vouched for one of its witnesses; (b) that the trial court erred by denying his motion for mistrial; and (c) that the trial court erred by imposing consecutive sentences because it allegedly believed the law required consecutive sentences. See Guinard, 2014 WL 2548104. On June 3, 2014, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. See id. The record reflects that Petitioner filed a petition for review in the Arizona Supreme Court, but it denied review on August 28, 2014. (Doc. 1-1 at 68.)

On June 10, 2014, Petitioner filed a notice of post-conviction relief (PCR). (Exh. O.) Appointed counsel, thereafter, filed a notice of determination stating that he “has been unable to find any issue or claim of merit.” (Exh. S.) Petitioner was afforded the opportunity to file a pro se PCR petition, and did so. Among his claims, Petitioner alleged the following: (a) insufficient evidence; (b) ineffective assistance of counsel for failing to object to a preliminary jury instruction mistakenly stating Petitioner was charged with attempted sexual assault, failing to move for a new trial based on prosecutorial vouching, failing to investigate an officer's statement that Petitioner drove a Mustang, failing to challenge inconsistencies in witness testimony, and failing to further challenge a witness's reference to Petitioner selling drugs to him on a prior occasion; (c) entrapment; and (d) prosecutorial misconduct for prosecuting the case despite knowing the “evidence did not match” and the informant supposedly had credibility issues, vouching at trial and closing arguments, calling as a witness an informant who “violated his contract, ” and eliciting inadmissible other acts evidence. (Doc. 1-2 at 5-81.)

Petitioner's pro se PCR petition consists of numerous supplements containing multiple claims that are buried within a narrative discussion of his claims, and mixed with pages of exhibits placed between arguments. Petitioner's petition for review filed in the Arizona Court of Appeals follows this same pattern (as does Petitioner's state court filings in his second case). Nevertheless, the Court has identified a substantial number of claims alleged in Petitioner's PCR petition and petition for review as noted above.

On October 21, 2016, the superior court denied the PCR petition finding that Petitioner's ineffectiveness claims were not colorable because “[n]one of the alleged errors raised by the Defendant [were] significant enough that they would have prejudiced the outcome of the case.” (Doc. 1-3 at 2-3.) The court found that the remaining claims were precluded by Arizona Rule of Criminal Procedure 32.2(a) because they should have been raised on direct appeal. (Doc. 1-3 at 2-3.)

Petitioner filed a petition for review in the Arizona Court of Appeals. Petitioner appeared to allege the following claims, in part: (a) insufficient evidence; (b) judicial misconduct for failing to recuse based on knowledge of the 2012 case, sentencing Petitioner to 20 years in this case but 5 years in the 2012 case, reading a preliminary instruction mistakenly stating Petitioner was charged with attempted sexual assault, allowing the reporter's transcripts to be altered, denying a mistrial when the informant alluded to Petitioner's prior drug sales, denying an evidentiary hearing in post-conviction proceedings, allowing a detective to open a sealed envelope containing evidence before trial, and allowing the State to engage in vouching; (c) prosecutorial misconduct for vouching, eliciting inadmissible other acts evidence, and calling an informant who “violated his contract”; (d) ineffective assistance of appellate counsel for failing to raise claims on appeal, including the preliminary instruction issue; (e) ineffective assistance of trial counsel for failing to move to suppress evidence that “did not match” testimony and to preclude the informant's testimony based on him violating his “contract, ” failing to object to vouching, failing to object to the reading of the inaccurate preliminary jury instruction, and failing to investigate an officer's statement that Petitioner drove a Mustang; (f) ineffective assistance of post-conviction counsel for failing to raise any colorable claims; and (g) entrapment. (Doc. 1-4 at 22-39.) The Court of Appeals granted review but denied relief, holding that the superior court had not abused its discretion in denying Petitioner's PCR petition. (Doc. 1-3 at 34-35.) Petitioner filed a petition for review in the Arizona Supreme Court, but it denied review on July 5, 2018. (Doc. 1-4 at 2-14, 88.)

In the second case, #CR201200975 (“second case” or “2012 case”), Petitioner was convicted by jury trial of one count each of transportation of dangerous drugs for sale and possession of drug paraphernalia, and was sentenced to a 5.75 year term of imprisonment to run consecutive to the sentence imposed in CR201101146. See State v. Guinard, 2015 WL 4747890 (Ariz.Ct.App. Aug. 11, 2015). The facts of the 2012 case reveal that “on April 26, 2012, [Petitioner] gave a police informant a ‘sample' of methamphetamine packaged in a plastic baggie, ” and “on May 14, 2012, Guinard sold the same informant $40 worth of methamphetamine, also packaged in a plastic baggie.” Id. Specifically, the facts state:

¶ 5 ... the police informant testified he had worked with police under contract after the State charged him with selling methamphetamine. The contract required the informant to assist police in apprehending other drug dealers. To that end, on April 26, 2012, the informant went to Guinard's home and asked

“about meth.” Guinard then handed the informant a “sample” of methamphetamine, which the informant turned over to Detective J. The informant was not wired at the time Guinard gave him the sample.

¶ 6 On May 14, 2012, Detective J assisted the informant in setting up a “controlled buy” with Guinard. Detective J recorded the informant's side of a phone call with Guinard, and the informant could be heard saying, “Hey Jimbo” - Guinard's nickname - and asking to buy some “shit” - a slang term for methamphetamine. After the informant and Guinard established a meeting place, Detective J wired the informant, conducted a thorough search of the informant and his Jeep for drugs and money, gave him $40 to buy the methamphetamine, and followed him to the meeting place.

¶ 7 Detective J saw the informant meet Guinard's brother in the parking lot and observed the two walk to a parked truck. Immediately after the controlled buy, the informant handed Detective J a baggie of methamphetamine, which the informant said he had bought from Guinard. The baggie of methamphetamine the informant gave to Detective J looked like “it was worth $40.00.”

Id.

Petitioner's counsel filed a timely appeal pursuant to Anders v. California, 386 U.S. 738 and State v. Leon, 451 P.2d 878 (Ariz. 1969), asking the court to search the record for fundamental error. See Guinard, 2015 WL 4747890. Petitioner was also afforded the opportunity to file a pro per supplemental brief, and did so. Petitioner alleged the following claims: (a) the superior court abused its discretion in denying his Rule 20 motion because the State failed to test the methamphetamine baggies for his fingerprints and DNA, thereby presenting insufficient evidence to support his convictions; (b) the State should have polygraph and drug tested the informant “to either uphold or diminish [his] credibility to testify truthfull[y], ” and because the State failed to do so, the informant was not credible; (c) the superior court should have severed the April 26, 2012 counts from the May 14, 2012 counts, and because it failed to do so, it prejudiced him; (d) the prosecutor vouched during closing argument and the superior court failed to take “curative measures, ” including instructing the jury to disregard the prosecutor's “specific erroneous statements”; (e) the State prejudiced him by disclosing “critical impeachment evidence ... on the eve of trial, ” and, relatedly, the superior court abused its discretion in failing to impose sanctions; (f) the trial judge was “partial and bias [sic] toward [him] with the evidence being obvious[ly]” in his favor; and (g) his trial counsel was ineffective because, first, he failed to move for a mistrial based on the State's late disclosure and prosecutorial vouching during closing argument, and second, he did not “compel” the State to produce exculpatory DNA and fingerprint evidence that the State either did or should have obtained from the methamphetamine baggies surrendered by the police informant. See id.; (Doc. 1-5 at 51-79.)

On August 11, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences, as corrected concerning presentence credit. See Guinard, 2015 WL 4747890. The record reflects that Petitioner filed a petition for review in the Arizona Supreme Court, but it denied review on March 11, 2016. (Exh. FF.)

On September 8, 2015, Petitioner filed a PCR notice. (Exh. GG.) Appointed counsel filed a notice of completion stating that he could find no colorable claims to raise in PCR proceedings. (Exh. HH.) Petitioner was afforded the opportunity to file a pro per PCR petition, and did so, raising the following claims: (a) insufficient evidence; (b) ineffective assistance of trial counsel for failing to investigate/test the State's evidence, “compel the State to forensic DNA test and fingerprint, ” call Donny Guinard as a witness, expose the State's intimidation tactics, object to impermissible vouching or to the trial court's bias; (c) entrapment; (d) ineffective assistance of appellate counsel and PCR counsel for failing to raise various claims; and (e) prosecutorial misconduct for failing to provide all evidence with reliable testing, vouching, zealously prosecuting the case. (Doc. 1-6 at 18-45.)

On September 25, 2017, the superior court denied the PCR petition finding that most of the claims were precluded under Arizona Rule of Criminal Procedure 32.2(a) because they should have been raised on direct appeal. (Doc. 1-7 at 2-3.) The court also rejected the ineffectiveness claims on the merits, finding them “unsupported by the record or simply speculative.” (Doc. 1-7 at 2-3.)

Petitioner filed a petition for review in the Arizona Court of Appeals, arguing generally: (a) judicial bias; (b) ineffective assistance of trial counsel; (c) ineffective assistance of appellate counsel; (d) ineffective assistance of post-conviction counsel; and (e) prosecutorial misconduct for pressuring Petitioner's brother to not testify. (Doc. 1-7 at 5-20.)

The Court of Appeals granted review but denied relief, holding that the superior court had not abused its discretion in denying Petitioner's petition. (Doc. 1-7 at 83-84.) Petitioner filed a petition for review in the Arizona Supreme Court, but it denied review on July 30, 2018. (Doc. 1-7 at 86-97, 116.)

In his habeas petition and supplement, Petitioner raises 21 grounds for relief, with numerous sub-claims alleged under several of the grounds. In every ground, Petitioner asserts violations of his Fifth, Sixth, and Fourteenth Amendment rights. In Grounds Four, Ten, Fifteen, Twenty, and Twenty-One, Petitioner also alleges Eighth Amendment claims concerning his sentences. Grounds One, Two, Three, Four, Five, Six, Seven, Eight, Nine, and Ten address Petitioner's convictions or sentences in CR201101146. Petitioner's remaining grounds for relief concern his convictions or sentences in CR201200975.

Although Petitioner states in his habeas petition that Grounds Nineteen and Twenty apply to his second case, he appears to raise certain subclaims in his supplemental brief that seem to apply to both his first case and his second case.

The Court notes that Petitioner's habeas petition and supplement together form a 210-page document, which includes over 700 pages of exhibits. Petitioner has also submitted a 478-page reply to Respondents' Answer containing an additional 70 pages of exhibits. In all, Petitioner alleges close to 100 claims. In the first 28 pages of his habeas petition and in the 17 pages comprising his supplement, Petitioner presents his claims in a listing format. In the remaining pages of his habeas petition, Petitioner attempts to support his claims in a 153-page narrative that is, at best, difficult to follow and unintelligible at times.

In Ground One, Petitioner alleges there was insufficient evidence to sustain his conviction. He attempts to support his claim with multiple examples of insufficient evidence. In Ground Two, he claims that he was denied trial by an impartial jury. In Ground Three, he claims the determination of guilt by the jury was based on less than proof beyond a reasonable doubt. In Ground Four, he alleges his sentence was excessive and violated the Eight Amendment, as well as, his equal protection and due process rights.

In Ground Five, Petitioner alleges that his trial counsel was ineffective for: (a) failing to object to prosecutorial vouching; (b) failing to object to the introduction of other acts evidence; (c) failing to request mistrial for “evidence not matching testimony” and the informant violating his “contract”; (d) failing to “obtain full discovery”; (e) failing to transcribe witness interviews; (f) failing to raise an entrapment defense; (g) failing to object to a preliminary jury instruction that mistakenly stated Petitioner was charged with a sexual offense; (h) denying Petitioner a fair trial due to cumulative errors; (i) failing to investigate whether Petitioner owned a Mustang; (j) failing to move for sanctions against the State for not having the evidence analyzed in a lab until 7 days before the trial date; (k) failing to preclude the evidence for untimely disclosure and for not analyzing the evidence until 7 days before the trial date; (1) failing to obtain material witness's complete medical history report to identify the other two depression meds the witness was taking to use as impeachment evidence; (m) failing to file a motion for acquittal or new trial; (n) failing to bring to the jury's attention that the crucial element of transportation for sales was never proven except by testimony of material witness working off charges; (o) failing to object to the use of prior felony convictions that were outside the 10 year time frame; (p) failing to request a jury's determination of use of prior felony convictions; (q) failing to request a change of venue or requesting trial judge recuse herself since she had knowledge of Petitioner's second trial coming up in her court; (r) failing to object to the police reports which do not state detectives searched informants vehicle before sending him on controlled buys; (s) failing to address, object or bring to the jury's attention in closing the perjury by inconsistencies and conflicts in State witness's testimony; (t) failing to discover disclosure violations; (u) erroneously advising Petitioner to waive the preliminary hearing; and (v) failing to file for sanctions for untimely disclosure of lab evidence.

In Ground Six, Petitioner alleges ineffective assistance of appellant counsel for failing to raise “all the issues that were reviewable by state court on appeal.” In Ground Seven, Petitioner alleges ineffective assistance of post-conviction counsel for filing a no-merits brief, not staying in contact with Petitioner, and failing to raise ineffective assistance of counsel claims.

In Ground Eight, Petitioner alleges prosecutorial misconduct for: (a) vouching throughout trial; (b) vouching in closing arguments; (c) introducing inadmissible other acts evidence; (d) proffering tampered evidence; (e) calling a detective to testify who had allegedly been disciplined for tampering evidence in other cases; and (f) calling the informant to testify when the informant had allegedly violated “conditions of his contract”; (g) failing to secure Det. Johnson's field notes after detective wrote his D.R.; (h) allowing Det. Johnson to open the evidence envelope two days before trial after it was sealed by lab tech; and (i) leading the material witness into changing his testimony about how the drugs he supposedly received was packaged to match Det. Johnson's testimony.

In Ground Nine, he claims judicial bias and malfeasance for: (a) reading a preliminary instruction that mistakenly stated Petitioner had been charged with a sexual offense; (b) failing to grant a mistrial after a witness disclosed Petitioner's other acts at trial; (c) failing to recuse based on the court's knowledge that Petitioner was soon to be tried in the 2012 case; (d) sentencing Petitioner to 20 years' imprisonment in the 2011 case but only 5 years in the 2012 case; (e) allowing the prosecutor to engage in vouching; (f) failing to give a curative instruction once Petitioner's other acts were disclosed to the jury; (g) denying Petitioner an investigator; (h) denying Petitioner “his full discovery”; (i) denying Petitioner an evidentiary hearing in post-conviction proceedings; (j) allegedly allowing a detective to open a sealed envelope containing evidence before trial; (k) running Petitioner's sentences consecutively; (1) failing to address all the complaints in the state PCR petition; (m) failing to grant Petitioner's pro-se motion for acquittal or new trial; (n) precluding issues in PCR that were not raised by appointed direct appeal attorney; (o) allowing the superior court to deny Petitioner's PCR petition on precluded issues that were not raised on direct appeal; (p) striking Petitioner's reply to State's response to Petitioner's petition for review; (q) sentencing Petitioner to 20 flat years in this trial when there was a 7-year plea on the table before Petitioner was charged in second case; and (r) refusing to respond and failing to appoint counsel.

In Ground Ten, he alleges that he was entrapped.

In Ground Eleven, Petitioner claims there was insufficient evidence to sustain his conviction. He attempts to support his claim with multiple examples of insufficient evidence. In Ground Twelve, he alleges he was denied trial by an impartial jury. In Ground Thirteen, Petitioner claims the determination of guilt by the jury was based on less than proof beyond a reasonable doubt. In Ground Fourteen, he alleges a violation of the right to compulsory process stating that the State violated Petitioner's right to produce witnesses by threatening to “pull” his brother's plea agreement if he testified on Petitioner's behalf. In Ground Fifteen, he claims that his sentence was excessive and violated the Eight Amendment, as well as, his equal protection and due process rights.

In Ground Sixteen, Petitioner alleges that his trial counsel was ineffective for: (a) failing to investigate/independent test of State's evidence; (b) failing to call Donny Guinard as a material defense witness when Donny's testimony would have proven Petitioner was not at the drug buy location; (c) failing to expose State's intimidation tactics utilized against potential defense witness Donny Guinard; (d) failing to effectively object to impermissible State vouching, and or object to trial court's State favored rulings; (e) failing to file motion to impeach State's witness for violating his contract with the State for his probation violations; (f) failing to object the very first time impermissible vouching occurred during re-direct examination; (g) suppressing the evidence for informant violating his contract with the State ineffective assistance; (h) failing to suppress the evidence once it was shown in the record that Petitioner was not seen at the drug transaction location nor was his voice on the audio recording; (i) failing to request the lesser offense added to jury verdict form; (j) failing to present voice recording analysis to provide documentation that Petitioner's voice was not on audio recording; (k) failing to request evidentiary hearing before this trial so the Judge could see just how weak the evidence was to support conviction; (1) failing to get the continuance after State's late disclosure that informant was referred by lead detective to silent witness; (m) failing to request a mistrial as soon as prosecutor vouched for the veracity of his State witness during closing argument and before State's rebuttal; (n) failure to file motion to impeach State's witness's for the numerous inconsistencies in testimony throughout trial and the interviews conducted by trial attorney; and (o) cumulative errors violate due process right to effective assistance of counsel.

In Ground Seventeen, he claims that his appellate counsel was ineffective for: (a) filing an Anders brief that failed to raise any arguable claims; (b) failing to raise prosecutorial vouching after stating it was a colorable claim; (c) misstating in his Anders brief that he did not raise prosecutorial vouching because trial attorney never objected when in fact the record shows different; and (d) refusing to defend and preserve Petitioner's cognizable claims in appellate venue.

In Ground Eighteen, Petitioner alleges that his post-conviction counsel was ineffective for failing to raise any issues, including ineffective assistance of trial counsel.

In Ground Nineteen, Petitioner alleges prosecutorial misconduct for: (a) failing to sufficiently develop the record; (b) enticing perjured testimony from State witness's to support crucial elements of the crime; (c) making last minute disclosures on the eve of trial to requested critical impeachment evidence; (d) failing to provide all the evidence with reliable forensic testing (D.N.A. and finger printing) to defense, jury and court; (e) intentionally and impermissibly vouching to the credibility of State's witness's knowing of corrupted/impeachment issues; (f) vouching during closing and rebuttal arguments to bolster the material witness's credibility; (g) prosecuting both cases against Petitioner where State's agents never eyewitness any sales of drugs and relied solely on informant's testimony's who testified pursuant to plea agreements; and (h) prosecuting Petitioner after offering Petitioner's brother a 3.5 year plea not to testify in Petitioner's trial when Petitioner's brother had a 9 to 35 open end plea on the table that was set for trial before the instant case and violated Petitioner's compulsory right to present defense witness who would have cleared Petitioner of charges.

In Ground Twenty, he alleges judicial bias and malfeasance for: (a) refusing to sever the counts from April 26, 2012 and May 14, 2012 after trial counsel warned the court the jury would see April 26 count as prior bad act; (b) allowing the State untimely disclosure of material witness being referred by case agent and being paid by silent witness on the eleventh hour of trial; (c) failing to instruct the jury on specific improper vouching statements made by the prosecutor in both trials to bolster informants testimony during closing and rebuttal arguments that put State's belief and prosecutor's personal opinions behind vouching; (d) denying Petitioner's 45-page post trial motion to dismiss or new trial; (e) precluding issues in PCR petition without granting evidentiary hearing since perjured testimony was used to support crucial elements of the crime; (f) denying Petitioner grand jury indictment hearing transcripts in both cases so Petitioner may use as possible impeachment evidence in his pro se PCR proceedings, which were Brady violations; (g) failing to recuse herself from this case as well as the first case when her bias shows by the 20 flat year sentence she imposed on the first case and the additional 5 years on the second case; (h) imposing a 20 year sentence in first case and 5 flat years in second case and now Petitioner is his own advocate that judges cannot sentence one person to more time than another for the same crimes by federal law; (i) abusing its power by not fully examining Petitioner's PCR claims in petition for review and sending a form letter denial to claims, the same form letter quoting the same case law to at least five other individuals on this complex alone and received at the same time, at least one individual was a murder case and the appellate court just cleared it's docket; and (j) abusing its power by not fully reviewing Petitioner's claims or addressing claims of appellate court only clearing docket.

Finally, in Ground Twenty-One, Petitioner alleges various instances of entrapment.

In their Answer, Respondents argue that Petitioner's grounds for relief are procedurally defaulted without an excuse for the default, insufficiently pled, non-cognizable, or meritless.

DISCUSSION

A. Standards of Review 1. Merits

Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson, 360 F.3d at 1055.

Antiterrorism and Effective Death Penalty Act of 1996.

A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). \\\ \\\

2. Exhaustion and Procedural Default

A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).

Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).

A “general appeal to a constitutional guarantee, ” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.

Even when a claim's federal basis is “self-evident, ” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim” to discover implicit federal claim).

Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:

In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.

Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.

Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).

A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).

A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).

Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).

A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris, 489 U.S. at 263 n.9).

Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1, 32.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4 (time bar), 32.16 (petition for review must be filed within thirty days of trial court's decision). See also Ariz.R.Crim.P. 33 (same rules as applicable to defendants who pleaded guilty). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).

Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable “cause” for a petitioner's failure to fairly present his claim. Regarding the “miscarriage of justice, ” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).

B. Grounds One, Two, Three, Four, Five (subclaims (d)-(f), (j)-(1), (n)-(p)), Six, Eight, Nine, Ten, Twelve, Thirteen, Fourteen, Fifteen, Seventeen (subclaims (b)-(d)), Nineteen (subclaims (a)-(b), (g)-(h)), Twenty (subclaims (b)-(d), (f)-(h)), and Twenty-One

Subclaim (a) under this heading applies to Petitioner's first case; Subclaim (g) applies to Petitioner's first and second case; Subclaims (b) and (h) apply to Petitioner's second case.

Subclaim (c) under this heading applies Petitioner's first case; Subclaims (f), (g), and (h) apply to Petitioner's first and second case; Subclaims (a), (b), and (d) apply to Petitioner's second case.

1. Grounds Three, Four, Five (subclaims (d)-(f), (j)-(1), (n)-(p)), Six, Eight (subclaims (g)-(h)), Nine (subclaims (a), (c)-(j), (1)-(r)), Twelve, Thirteen, Fourteen, Fifteen, Seventeen (subclaims (b)-(d)), Nineteen (subclaims (a), (g)-(h)), and Twenty (subclaims (b)-(c), (f)-(h))

In Ground Three, Petitioner claims the determination of guilt by the jury was based on less than proof beyond a reasonable doubt. In Ground Four, he alleges his sentence was excessive and violated the Eight Amendment, as well as, his equal protection and due process rights.

In subclaims (d)-(f), (j)-(1), (n)-(p) of Ground Five, Petitioner alleges that his trial counsel was ineffective for: (d) failing to “obtain full discovery, ” (e) failing to transcribe witness interviews, (f) failing to raise an entrapment defense, (j) failing to move for sanctions against the State for not having the evidence analyzed in a lab until 7 days before the trial date, (k) failing to preclude the evidence for untimely disclosure and for not analyzing the evidence until 7 days before the trial date, (1) failing to obtain material witness's complete medical history report to identify the other two depression meds the witness was taking to use as impeachment evidence, (n) failing to bring to the jury's attention that the crucial element of transportation for sales was never proven except by testimony of material witness working off charges, (o) failing to object to the use of prior felony convictions that were outside the 10 year time frame, and (p) failing to request a jury's determination of use of prior felony convictions.

In Ground Six, Petitioner alleges ineffective assistance of appellant counsel for failing to raise “all the issues that were reviewable by state court on appeal.”

In subclaims (g)-(h) of Ground Eight, Petitioner alleges prosecutorial misconduct for: (g) failing to secure Det. Johnson's field notes after detective wrote his D.R., and (h) allowing Det. Johnson to open the evidence envelope two days before trial after it was sealed by lab tech.

In subclaims (a), (c)-(j), and (1)-(r) of Ground Nine, he claims judicial bias and malfeasance for: (a) reading a preliminary instruction that mistakenly stated Petitioner had been charged with a sexual offense, (c) failing to recuse based on the court's knowledge that Petitioner was soon to be tried in the 2012 case, (d) sentencing Petitioner to 20 years' imprisonment in the 2011 case but only 5 years in the 2012 case, (e) allowing the prosecutor to engage in vouching, (f) failing to give a curative instruction once Petitioner's other acts were disclosed to the jury, (g) denying Petitioner an investigator, (h) denying Petitioner “his full discovery, ” (i) denying Petitioner an evidentiary hearing in post-conviction proceedings, (j) allegedly allowing a detective to open a sealed envelope containing evidence before trial, (1) failing to address all the complaints in the state PCR petition, (m) failing to grant Petitioner's pro-se motion for acquittal or new trial, (n) precluding issues in PCR that were not raised by appointed direct appeal attorney, (o) allowing the superior court to deny Petitioner's PCR petition on precluded issues that were not raised on direct appeal, (p) striking Petitioner's reply to State's response to Petitioner's petition for review, (q) sentencing Petitioner to 20 flat years in this trial when there was a 7-year plea on the table before Petitioner was charged in second case, and (r) refusing to respond and failing to appoint counsel.

In Ground Twelve, Petitioner alleges he was denied trial by an impartial jury. In Ground Thirteen, he claims the determination of guilt by the jury was based on less than proof beyond a reasonable doubt. In Ground Fourteen, he alleges a violation of the right to compulsory process stating that the State violated Petitioner's right to produce witnesses by threatening to “pull” his brother's plea agreement if he testified on Petitioner's behalf. In Ground Fifteen, he claims that his sentence was excessive and violated the Eighth Amendment, as well as, his equal protection and due process rights.

In subclaims (b)-(d) of Ground Seventeen, Petitioner claims that his appellate counsel was ineffective for: (b) failing to raise prosecutorial vouching after stating it was a colorable claim, (c) misstating in his Anders brief that he did not raise prosecutorial vouching because trial attorney never objected when in fact the record shows different, and (d) refusing to defend and preserve Petitioner's cognizable claims in appellate venue.

In subclaims (a), (g) (as applied to his first case), and (h) of Ground Nineteen, Petitioner alleges prosecutorial misconduct for: (a) failing to sufficiently develop the record, (g) prosecuting both cases against Petitioner where State's agents never eyewitness any sales of drugs and relied solely on informant's testimony's who testified pursuant to plea agreements, and (h) prosecuting Petitioner after offering Petitioner's brother a 3.5 year plea not to testify in Petitioner's trial when Petitioner's brother had a 9 to 35 open end plea on the table that was set for trial before the instant case and violated Petitioner's compulsory right to present defense witness who would have cleared Petitioner of charges.

In subclaims (b)-(c), (f)-(h) of Ground Twenty, Petitioner specifically alleges judicial bias and malfeasance for: (b) allowing the State untimely disclosure of material witness being referred by case agent and being paid by silent witness on the eleventh hour of trial, (c) failing to instruct the jury on specific improper vouching statements made by the prosecutor in both trials to bolster informants testimony during closing and rebuttal arguments that put State's belief and prosecutor's personal opinions behind vouching, (f) denying Petitioner grand jury indictment hearing transcripts in both cases so Petitioner may use as possible impeachment evidence in his pro se PCR proceedings, which were Brady violations, (g) failing to recuse herself from this case as well as the first case when her bias shows by the 20 flat year sentence she imposed on the first case and the additional 5 years on the second case, and (h) imposing a 20 year sentence in first case and 5 flat years in second case and now Petitioner is his own advocate that judges cannot sentence one person to more time than another for the same crimes by federal law.

The record reflects that Petitioner failed to fairly present each of these claims to the state courts in procedurally appropriate manner. Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 32.2(a), 32.4(a), 32.9 (c).

Petitioner failed to either present these claims to the trial court in a PCR petition, failed to present these claims to the Arizona Court of Appeals, or failed to present claims these claims to any of the state courts.

2. Grounds One, Eight (subclaims (c)-(f), (i)), Ten, Nineteen (subclaims (b) and (g)) and Twenty-One

In Ground One, Petitioner claims there was insufficient evidence to sustain his conviction and he challenges the chain of custody.

In subclaims (c)-(f), (i) of Ground Eight, Petitioner alleges prosecutorial misconduct for: (c) introducing inadmissible other acts evidence, (d) proffering tampered evidence, (e) calling a detective to testify who had allegedly been disciplined for tampering evidence in other cases, (f) calling the informant to testify when the informant had allegedly violated “conditions of his contract, ” and (i) leading the material witness into changing his testimony about how the drugs he supposedly received was packaged to match Det. Johnson's testimony.

In Grounds Ten and Twenty-One, he alleges that he was entrapped.

In subclaims (b) and (g) (as applied to his second case) of Ground Nineteen, Petitioner alleges prosecutorial misconduct for: (b) enticing perjured testimony from State witness's to support crucial elements of the crime, and (g) prosecuting both cases against Petitioner where State's agents never eyewitness any sales of drugs and relied solely on informant's testimony's who testified pursuant to plea agreements.

Petitioner presented each of these claims in his PCR proceedings. However, citing to Rule 32(a) of the Arizona Rules of Criminal Procedure, the state court found that these claims were precluded under state law as they could have been raised on direct appeal, but were not. Arizona Rule of Criminal Procedure 32.2(a) constitutes an adequate and independent state ground for denying review. See, e.g., Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir. 2006) (holding that Arizona's procedural rules are “clear” and “well-established”); Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz. 2002) (explaining that for most trial error, the “State may simply show that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding” for preclusion under Rule 32.2(a)) (internal quotation omitted); Stewart, 536 U.S. at 860 (finding Rule 32.2(a) determinations independent of federal law); Ortiz, 149 F.3d at 932 (finding Rule 32.2(a) regularly followed and adequate).

Accordingly, because the Arizona state court denied these claims alleged by invoking an adequate and independent state rule, Ground One, subclaims (c)-(f), (i) of Ground Eight, Ground Ten, subclaims (b) and (g) of Ground Nineteen, and Ground Twenty-One are procedurally barred.

3. Grounds Two, Eight (subclaims (a)-(b)), Nine (subclaims (b) and (k)), and Twenty (subclaim (d))

In Ground Two, Petitioner alleges that the introduction of other acts evidence violated his right to an impartial jury. In subclaims (a) and (b) of Ground Eight, Petitioner claims prosecutorial misconduct for (a) vouching throughout trial, and (b) vouching in closing arguments. In subclaims (b) and (k) of Ground Nine, Petitioner alleges judicial bias for (b) failing to grant a mistrial after a witness disclosed Petitioner's other acts at trial, and (k) running Petitioner's sentences consecutively. In subclaim (d) of Ground Twenty, Petitioner alleges judicial bias and malfeasance for: (d) denying Petitioner's 45-page post trial motion to dismiss or new trial. Again, in asserting each of these claims, Petitioner alleged violations of his Fifth, Sixth, and Fourteenth Amendment rights.

Petitioner appears to have alleged similar claims in his first (or second) direct appeal to the Arizona Court of Appeals, arguing that the State vouched for the informant, the trial court erred when it denied his motion for mistrial after the informant testified about material the trial court excluded prior to trial, the trial court erred by imposing consecutive sentences, and the superior court abused its discretion in denying his Rule 20 motion. However, Petitioner made no reference to and cited no federal constitutional provisions or case law. And, the Arizona Court of Appeals addressed the claims solely under state law.

A 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). Petitioner did none of that, but instead presented these claims wholly based on state law. Accordingly, these claims were not fairly presented. Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 31, 32.2(a).

4. Cause for the Defaults and Actual Prejudice, or a Fundamental Miscarriage of Justice

Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner has not established that any exception to procedural default applies.

Throughout his reply, Petitioner appears to concede that his claims are procedurally defaulted, but summarily argues that he will show cause and prejudice to excuse the default. Petitioner then claims that he needs discovery documents and an evidentiary hearing in order to refute Respondents' claims. Later in his brief, Petitioner refutes Respondents' arguments regarding default and claims that he did raise his claims in the state courts in a procedurally appropriate manner. Petitioner then argues the merits of his claims. Petitioner presents arguments in his Reply to Respondents' supplement in this same fashion.

Initially, the Court notes again that much like the habeas petition and the multitude of pro per state court filings, Petitioner's reply takes the form of 478-page narrative. Petitioner commingles his arguments without any clear delineation of claims. Despite its breadth, Petitioner's reply is full of conclusory assertions, and he fails to demonstrate that some external impediment prevented him from complying with the state's procedural rules.

Moreover, Petitioner's status as an inmate, lack of legal knowledge and assistance, and limited legal resources do not establish cause to excuse the procedural bar. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.

Petitioner has also not established a fundamental miscarriage of justice. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is “demanding.” House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial.” Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner “must demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a ‘miscarriage of justice.'” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327. Although Petitioner continues to argue the merits of his claims in his reply, he has not established a sufficient showing of actual innocence to demonstrate a miscarriage of justice. Therefore, Petitioner cannot excuse his procedural defaults on this basis.

Petitioner cites to Martinez v. Ryan, 566 U.S. 1 (2012), asking the Court to excuse his default and consider his claims on the merits. In Martinez, the Supreme Court created a “narrow exception” to the principle that “an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Id. The Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id.

“Cause” is established under Martinez when:

(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding.

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).

The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert “cause” to overcome the procedural bar based on attorney error that occurred in “appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Id. at 16.

Grounds One, Two, Three, Four, Eight, Nine, Ten, Twelve, Thirteen, Fourteen, Fifteen, Nineteen, Twenty, and Twenty-One do not assert ineffective assistance of counsel. Therefore, Martinez does not apply. Further, although Petitioner claims that Martinez applies to excuse the procedural default of Ground Six and Seventeen, Martinez does not extend to procedurally defaulted claims of ineffective assistance of appellate counsel. See Davila v. Davis, __ U.S. __, 137 S.Ct. 2058, 2065-66, 198 L.Ed.2d 603 (2017) (Martinez does not extend to procedurally defaulted claims of ineffective assistance of appellate counsel.).

As to subclaims (d)-(f), (j)-(1), (n)-(p) of Ground Five, Petitioner has not demonstrated “substantial” claims of ineffective assistance of counsel.

A “substantial” claim “has some merit.” Id. at 14. Like the standard for issuing a certificate of appealability, to establish a “substantial” claim, a petitioner must demonstrate that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (internal quotations omitted). In other words, a claim is “‘insubstantial' if it does not have any merit or is wholly without factual support.” Id. Determining whether an ineffective assistance of counsel claim is “substantial” requires a district court to examine the claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984).

To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See Id. at 687-88. To establish deficient performance, a petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Id. at 699. A petitioner's allegations and supporting evidence must withstand the court's “highly deferential” scrutiny of counsel's performance, and overcome the “strong presumption” that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90. A petitioner bears the burden of showing that counsel's assistance was “neither reasonable nor the result of sound trial strategy, ” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that “‘might be considered sound trial strategy'” do not constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

To establish prejudice, a petitioner must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the possibility that a petitioner suffered prejudice is insufficient to establish Strickland's prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (“[A petitioner] must ‘affirmatively prove prejudice.' ... This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him.”) (quoting Strickland, 466 U.S. at 693). However, the court need not determine whether counsel's performance was deficient if the court can reject the claim of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the court may proceed directly to the prejudice prong).

Accordingly, having reviewed Petitioner's ineffective assistance of counsel claims alleged in subclaims (d)-(f), (j)-(1), (n)-(p) of Ground Five, the Court finds that Petitioner's bare allegations do not establish substantial claims of ineffective assistance of counsel. See, e.g., Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (conclusory allegations of ineffective assistance do not warrant relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same). Thus, Petitioner has not established cause for his procedural default of subclaims (d)-(f), (j)-(1), (n)-(p) of Ground Five under Martinez. The Court will recommend that these claims be denied.

C. Grounds Seven and Eighteen

In Ground Seven, Petitioner alleges ineffective assistance of post-conviction counsel for filing a no-merits brief, not staying in contact with Petitioner, and failing to raise ineffective assistance of counsel claims. In Ground Eighteen, Petitioner alleges that his post-conviction counsel was ineffective for failing to raise any issues, including ineffective assistance of trial counsel.

Not only did Petitioner fail to fairly present these claims in both his first and second PCR proceedings, and his bare conclusory allegations are insufficient, see, e.g., Jones, 66 F.3d at 204 and James, 24 F.3d at 26, but the state prisoner habeas statute provides: “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i).

Moreover, there is generally no constitutional right to counsel in state post-conviction proceedings. See Coleman, 501 U.S. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). But see Pacheco v. Ryan, 2016 WL 7423410 (D. Ariz. Sept. 23, 2016), report and recommendation adopted, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016) (recognizing constitutional right to counsel in of-right PCR proceedings for pleading Arizona defendants). Where there is no right to counsel, there can be no deprivation of effective assistance of counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); see also Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005), cert. denied, 548 U.S. 927 (2006) (“because there is no Sixth Amendment right to counsel in state postconviction proceedings, there can be no independent constitutional violation as a result of postconviction counsel's incompetence”); Martinez, 566 U.S. 1 (Supreme Court expressly declined to decide whether a freestanding right to counsel existed in state post-conviction proceedings offering a first chance to challenge ineffective assistance of trial counsel).

Consequently, Petitioner's claims of ineffective assistance of counsel during his first and second PCR proceedings do not state cognizable claims for federal habeas relief. The Court will recommend that Grounds Seven and Eighteen be denied.

D. Grounds Five (subclaims (a)-(c), (g)-(i), (m), (q)-(v)), Eleven, Sixteen, Seventeen (a), Nineteen (a), (c)-(f), and Twenty (a), (e), (i)-(j))

1. Ground Five (a)

In Ground Five (a), Petitioner alleges that his trial counsel was ineffective for failing to object to prosecutorial vouching. Petitioner presented this ineffective assistance claim in his PCR petition and petition for review to the Arizona Court of Appeals. The state court denied the claims finding that Petitioner's ineffectiveness claims were not colorable because “none of the alleged errors raised by the Defendant [were] significant enough that they would have prejudiced the outcome of the case.” (Doc. 1-3 at 2-3.)

Although Petitioner fails to present any further specifics regarding the alleged vouching, the Court assumes that Petitioner is referring to the claim alleged in his first direct appeal. There, Petitioner argued that the State vouched for the informant when a deputy testified the informant was reliable and when the prosecutor addressed the informant's reliability and credibility in closing argument.

In discussing the deputy's testimony, the Arizona Court of Appeals stated:

¶ 4 Guinard attacked the reliability and credibility of the informant during cross examination of a deputy who worked with the informant. The informant's credibility was affected by several factors, including that he had used methamphetamine for years, and faced imprisonment if he did not cooperate with law enforcement. On redirect examination, the prosecutor asked the deputy, “Okay. Is there any indication that [the informant] wasn't reliable?” The deputy responded, “No, none. He was completely honest from the day of the arrest about his involvement with drugs, including the selling of the meth to the informant that he sold the drugs to, and not ever did he give us a reason to think he was lying about anything.” Guinard argues the State vouched for the credibility of the informant through this testimony.

Guinard, 2014 WL 2548104.

“As a general rule, a prosecutor may not express his opinion of the defendant's guilt or his belief in the credibility of government witnesses.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Such “vouching” amounts to the prosecutor “placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony.” Id. Arizona case law also defines “vouching” in similar fashion. See State v. Salcido, 681 P.2d 925, 927 (Ariz.Ct.App. 1984) (Using same two-part definition outlined in Necoechea); see also State v. Dunlap, 930 P.2d 518, 538 (Ariz.Ct.App. 1996), review denied, cert. denied, 520 U.S. 1275 (1997).

The appellate court found that the deputy's testimony was “not prosecutorial vouching.” Guinard, 2014 WL 2548104. The court stated:

A law enforcement officer's testimony regarding the credibility of another witness is not the same as prosecutorial vouching. See State v. Martinez, 230 Ariz. 382, 385 n.4, ¶ 10, 284 P.3d 893, 896 n.4 (App. 2012). We address, however, whether the deputy's statement was an impermissible comment on the informant's credibility.

¶ 6 Generally, a witness may not comment about the truthfulness of statements by another witness. Id. at 385, ¶ 11, 284 P.3d at 896 (citing State v. Reimer, 189 Ariz. 239, 241, 941 P.2d 912, 914 (App. 1997)). A trial court may, however, admit evidence of a witness's character for truthfulness once a party has attacked the witness's character for truthfulness. Ariz. R. Evid. 608(a). Permissible evidence of a witness's character for truthfulness includes opinions regarding the truthfulness of the witness in general. Id.; see State v. Fulminante, 161 Ariz. 237, 252-53, 778 P.2d 602, 617-18 (1988). Guinard attacked the credibility of the informant during his cross examination of the deputy. The State could in turn admit evidence of the informant's character for truthfulness. We find no error, fundamental or otherwise.

Guinard, 2014 WL 2548104.

In addressing the prosecutor's closing argument, the Arizona Court of Appeals stated:

¶ 8 Guinard also argues the prosecutor vouched for the informant during the rebuttal portion of his closing argument when he placed the prestige of the government behind the informant's testimony. ...

¶ 9 Because the alleged misconduct occurred during rebuttal, we view the prosecutor's argument in the context of Guinard's closing argument. See State v. Kerekes, 138 Ariz. 235, 239, 673 P.2d 979, 983 (App. 1983). In his closing argument, Guinard argued the informant was a thirty-year user of methamphetamine who was on disability because of mental problems, who not only bought and sold methamphetamine and marijuana but used his Social Security benefits to buy drugs. He argued the informant was a liar who had no credibility, who was not believable and who the jury could not trust. Guinard argued the informant had an incentive to lie because he hoped to obtain a reduction of his own pending charges and avoid prison. He further argued drug users like the informant steal from and lie to their own family and friends, and that all of the suspects the informant had “set up and busted”

were former friends to whom he had lied. Guinard also argued the deputies who worked with the informant knew about his “credibility issues” yet continued to work with him. Finally, Guinard argued the informant shook so badly when he testified he looked like someone who was on drugs.[]

¶ 10 The prosecutor addressed these arguments in rebuttal. Guinard identifies three portions of the prosecutor's rebuttal argument that allegedly vouched for the informant. In the first instance, the prosecutor argued:

[The deputy] decided to use [the informant] because he believed that he was a good guy who was credible. He made the decision based upon his training, his experience, and in dealing with people of this nature for several years. He made the analysis that, no, this is somebody who's trustworthy; this is somebody I can work [with] who will be honest, who will follow up. And he testified that he was, he was reliable. [The informant] called in regularly, did what was asked of him; he did everything that was asked of him. Nothing to indicate that he lied to [the deputy] at any time. [The deputy] testified that he was aware of that, never lied to him at all. He was a good informant.

¶ 11 We find no error. “[P]rosecutorial comments which are fair rebuttal to comments made initially by the defense are acceptable.” State v. Duzan, 176 Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993). Further, “during closing arguments counsel may summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. Guinard attacked the informant's credibility and the deputy's use of the informant. The prosecutor's argument was a fair rebuttal to those arguments and was based on the evidence admitted at trial and the reasonable inferences one could draw from that evidence. To the extent, if any, the argument commented on the informant's truthfulness, a prosecutor may characterize a witness as truthful when the argument is sufficiently linked to the evidence. See State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997). The only limitations are that the prosecutor may not place the prestige of the government behind the witness or suggest that information not before the jury supports the testimony. Id. This portion of the prosecutor's argument did not improperly vouch for the informant.

¶ 12 The second instance of alleged vouching occurred when the prosecutor addressed how the informant shook during his testimony:

State's belief is that the reason he's shaking like a leaf yesterday is he's outed. He wasn't outed then; nobody knew who he was or what he was doing. But in court yesterday, he was outed. Mr. Guinard, the defendant, knows, “That's the guy who set me up. That's the guy why I'm sitting in here today.”

Guinard, 2014 WL 2548104.

While the prosecutor should not have prefaced his argument with “State's belief, ” the court again found no error finding that Petitioner “addressed how the informant shook during his testimony and went so far as to suggest it showed the informant testified while under the influence of drugs.” Id. The court determined that the prosecutor's rebuttal was reasonable given that he was responding to Petitioner's argument and was sufficiently linked to the evidence admitted at trial and the reasonable inferences one could draw from that evidence. See id. The court noted that the informant even testified that he was nervous because he feared what people may do to him in the future because of his work as an informant, stating that informants can end up injured or dead. See id.

The final instance of alleged vouching during closing argument occurred when the prosecutor argued:

[The informant] was-He testified as to exactly what happened, and he was being truthful, honest, honest about himself, about things that people aren't very proud of, about his drug use and testifying against someone who he once considered a friend, didn't feel all that confident about himself.

Id. (Emphasis added.)

The court, in addressing only the italicized language at issue, found no error, concluding that said language addressed Petitioner's closing arguments regarding the credibility of the informant. The court stated that the statement was based on the evidence admitted at trial and the reasonable inferences one could draw from that evidence. See id.

Specifically, regarding the informant's testimony about “what happened, ” the court found that the informant's version of events was supported by the audio recordings of the controlled buys, the testimony of the deputy who participated in the controlled buys and the expert witness who identified the drugs purchased as methamphetamine. See id.

Regarding the informant's testimony about himself, the court found that the informant admitted he was a drug dealer and long-term drug user who worked as an informant to help set up his friends for prosecution simply to save himself and he was not proud of himself or his actions. See id. And lastly, regarding the prosecutor's assertions that the informant was “truthful” and “honest, ” the court found that a prosecutor may characterize a witness as truthful when the argument is sufficiently linked to the evidence. See id.

Initially, the Court finds that, in resolving whether the State improperly vouched during the deputy's testimony and during closing argument, the appellate court's rejection of Petitioner's claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

This finding also applies to address Petitioner's claim alleged in Ground Nineteen (f) (in connection with his 2011 case). In Ground Nineteen (f), Petitioner alleges prosecutorial misconduct for vouching during closing and rebuttal arguments to bolster the material witness's credibility.

Thus, because the deputy's testimony and statements during closing argument at issue here were not improper, any objection by counsel on the basis of prosecutorial vouching would have been denied. Therefore, Petitioner has failed to overcome the presumption that, under the circumstances, defense counsel's actions constituted sound trial strategy, let alone establish that, even had defense counsel objected, there is a “a reasonable probability that absent the errors the fact finder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 687-94 (citations omitted); see United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991) (recognizing that counsel's failure to object may be reasonable because of fear that jury might construe objections as “a sign of desperation and hyper-technicality”).

Moreover, the Court notes that the trial court instructed the jurors that “with respect generally to the witnesses you have heard testify, you must decide accuracy of each witness's testimony. You may accept everything a witness says, or part of it, or none of it.” (Exh. H at 8.) The court also instructed: “In the opening statements and closing arguments, the lawyers talked to you about the law and the evidence. What the lawyers say is not evidence, but it may help you understand the law and the evidence.” (Exh. H at 10.) Thus, although not specifically mentioning “vouching, ” any potential prejudice by either the deputy's testimony or the prosecutor's closing argument was reduced by the court's curative instructions.

Accordingly, the Court finds that the state court's denial of Petitioner's claim of ineffective assistance for failing to object to prosecutorial vouching was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

2. Ground Five (b)

In Ground Five (b), Petitioner contends that his counsel was ineffective for failing to object to the introduction of other acts evidence. Petitioner presented this ineffective assistance claim in his PCR petition and petition for review to the Arizona Court of Appeals. The state court denied the claims finding that Petitioner's ineffectiveness claims were not colorable. (Doc. 1-3 at 2-3.)

Petitioner fails to present any specifics or facts in support of his claim. However, on direct appeal, the Arizona Court of Appeals addressed the other acts evidence at issue in Ground Five (b) in ruling on Petitioner's motion for mistrial. Specifically, the court stated:

¶ 18 The trial court granted Guinard's pretrial motion to exclude evidence that Guinard and the informant used and/or possessed methamphetamine together in the past. During its examination of the informant, the State asked, “Why did you identify Mr. Guinard to law enforcement officers?” The informant responded, “Because I bought meth from him before.”[] Guinard objected and moved for a mistrial. The trial court sustained the objection, struck the answer, instructed the jury to disregard the answer and denied the motion for mistrial. The court later denied Guinard's renewed motion, explaining that the incident did not warrant a mistrial because the court sustained the objection, struck the answer and instructed the jury to disregard it. The court further explained the jury had already heard that these types of cases “don't come out of the blue, that they do get names from people in the past based on their activity and their drug involvement[.]”

Guinard, 2014 WL 2548104.

As noted by the appellate court, Petitioner did object and went so far as to move for a mistrial. Although the court denied counsel's motion, the court sustained counsel's objection and gave a limiting instruction that covered the stricken testimony. Petitioner fails to explain what more counsel should have done. Petitioner has failed to demonstrate deficient performance or prejudice.

Accordingly, the Court finds that the state court's denial of Petitioner's claim of ineffective assistance for failing to object to the introduction of other acts evidence was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

3. Ground Five (c)

In Ground Five (c), Petitioner alleges that counsel was ineffective for “failing to request mistrial” for “evidence not matching testimony, ” and for the informant violating his “contract when contract clearly states that if material informant violates his contract, the state could use any information except for controlled buys.” Due to the lack of specifics and factual support, and the fact that counsel did, in fact, move for a mistrial, the Court assumes that Petitioner is claiming ineffective assistance for counsel's failure to move for a new trial. Petitioner presented similar claims in his PCR proceedings, and the state court denied the claims finding that Petitioner's ineffectiveness claims were not colorable. (Doc. 1-3 at 2-3.)

Pursuant to Rule 24.1(c) of the Arizona Rules of Criminal Procedure, the court may grant a new trial if: (1) the verdict is contrary to law or the weight of the evidence; (2) the State is guilty of misconduct; (3) one or more jurors committed misconduct by (a) receiving evidence not admitted during the trial or phase of trial; (b) deciding the verdict by lot; (c) perjuring himself or herself, or willfully failing to respond fully to a direct question posed during the voir dire examination; (d) receiving a bribe or pledging his or her vote in any other way; (e) being intoxicated during trial proceedings or deliberations; or (f) conversing before the verdict with any interested party about the outcome of the case; (4) the court erred in deciding a matter of law or in instructing the jury on a matter of law; or (5) for any other reason, not due to the defendant's own fault, the defendant did not receive a fair and impartial trial or phase of trial. Since Petitioner's claim is comprised of nothing more than bare conclusory allegations, the Court finds it unclear as Petitioner fails to explain how his claim fits into these categories.

To the extent Petitioner's claim can be construed as alleging that conflicting evidence and inconsistent testimony are insufficient to constitute a verdict, and counsel should have filed a motion to that effect, the Court is not persuaded. To set aside a jury verdict for insufficient evidence, it must clearly appear that upon no hypothesis whatsoever is there sufficient evidence to support the conclusion reached by the jury. See State v. Arredondo, 746 P.2d 484, 486 (Ariz. 1987). Petitioner's mere allegation that conflicting evidence and inconsistent testimony were insufficient to constitute a verdict goes against the weight of the evidence presented here, consisting of the informant's testimony, Petitioner's statements on the audio recording, and the drugs themselves. Thus, because the offense was clearly proven by the evidence presented, counsel could not have been ineffective by failing to file a motion for a new trial based upon insufficient evidence.

Moreover, Petitioner's claim must be rejected because he has failed to make any showing that, had such a motion been filed, there is a reasonable likelihood that the motion would have succeeded. This is particularly so, where trial counsel moved for a mistrial based on the testimony of the informant, as well as, a Rule 20 motion arguing insufficient evidence, and both motions were denied.

Accordingly, the Court finds that Petitioner has failed to demonstrate deficient performance or prejudice and, as such, finds that the state court's denial was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

4. Ground Five (g)

In Ground Five (g), Petitioner alleges that counsel was ineffective for failing to object to a preliminary jury instruction that mistakenly stated Petitioner was charged with a sexual offense. Petitioner presented this ineffective assistance claim in his PCR petition and petition for review to the Arizona Court of Appeals. The state court denied the claims finding that Petitioner's ineffectiveness claims were not colorable. (Doc. 1-3 at 2-3.)

The record reflects that on “Day 1” of trial, the court read a preliminary instruction to the jury that mistakenly stated:

The State has charged the defendant with one count of Sexual Assault and one count of Attempted Sexual Assault. These charges are not evidence against the defendant. You must not think the defendant is guilty just because the defendant has been charged with a crime.

(Exh. F at 28.)

On that same day of trial, the clerk read the correct charges. (Exh. F at 33-34.) The final jury instructions also stated the correct charges and repeated the advisement not to consider the charges as evidence of guilt. (Exh. H at 12, 15-16.)

Assuming deficient performance for allegedly failing to object to the preliminary jury instruction at issue, Petitioner has failed to demonstrate prejudice. The misreading of the charges was a one-time mistake that did not occur again. The jury heard the correct charges several times throughout the trial, and both the prosecutor and defense counsel argued the case around the correct charges. (Exh. H at 28-29, 39-40.)

Finding that Petitioner has failed to demonstrate prejudice, the Court finds that the state court's denial of Petitioner's claim of ineffective assistance for failing to object to a preliminary jury instruction that mistakenly stated Petitioner was charged with a sexual offense was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

5. Ground Five (i)

In Ground Five (i), Petitioner argues that counsel was ineffective for failing to investigate whether Petitioner owned a Mustang. Petitioner states that he “does not own a Mustang when detective testified ‘Guinards Mustang' left the house to go pick up the drugs.” Petitioner states that “the transportation element was never proven except by informants testimony.” Petitioner presented this ineffective assistance claim in his PCR petition and petition for review to the Arizona Court of Appeals. The state court denied the claims finding that Petitioner's ineffectiveness claims were not colorable. (Doc. 1-3 at 2-3.)

Petitioner appears to be referring to the testimony of Deputy Ted Direen, who testified at trial to his recollection of the events on July 19, 2011. (Exh. G.) At one point during his testimony, the Deputy stated that based on his “recollection” that “[he] believe[s] [he] remember[s] seeing Mr. Guinard's Mustang leave the residence.” (Exh. G at 143-44.) Counsel did not ask any follow-up questions regarding this specific testimony.

Assuming deficient performance for counsel's failure to investigate or ask follow-up questions regarding the make of Petitioner's car, this portion of the Deputy's testimony was insignificant and had no effect on the jury's verdict. Accordingly, Petitioner has failed to demonstrate prejudice.

The Court finds that the state court's denial of Petitioner's claim of ineffective assistance for failing to investigate whether Petitioner owned a Mustang was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

6. Ground Five (m), (q)-(v)

In Ground Five (m), (q)-(v), Petitioner alleges that his trial counsel was ineffective for: (m) failing to file a motion for acquittal or new trial, (q) failing to request a change of venue or requesting trial judge recuse herself since she had knowledge of Petitioner's second trial coming up in her court, (r) failing to object to the police reports which do not state detectives searched informants vehicle before sending him on controlled buys, (s) failing to address, object or bring to the jury's attention in closing the perjury by inconsistencies and conflicts in State witness's testimony, (t) failing to discover disclosure violations, (u) erroneously advising Petitioner to waive the preliminary hearing, and (v) failing to file for sanctions for untimely disclosure of lab evidence.

Construed liberally, Petitioner presented these ineffective assistance claims in his PCR petition and petition for review to the Arizona Court of Appeals. The state court denied the claims finding that Petitioner's ineffectiveness claims were not colorable. (Doc. 1-3 at 2-3.)

As the Court has noted, Petitioner identifies the claims alleged above in a listing format in his supplement to his habeas petition. Then, as “supporting facts” for these claims, Petitioner refers the Court back to his habeas petition wherein the Court fails to find any established claim of ineffective assistance, much less, a coherent argument.

Petitioner's cursory and conclusory allegations fail to support claims of ineffective assistance. The Court finds that the state court's denial of Petitioner's claims of ineffective assistance was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

7. Ground Five - cumulative errors

Petitioner alleges that counsel's cumulative errors deprived him of his rights.

In some cases, although no single error of counsel is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still sufficiently prejudice a defendant to require his conviction be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003). However, cumulative error is more likely to be found prejudicial when the state's case against the defendant is weak. Cf. Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (discussing cumulative error in the context of allegations of the violation of due process, and concluding: “If the evidence of guilt is otherwise overwhelming, the errors are considered ‘harmless' and the conviction will generally be affirmed.”). Here, all of Petitioner's ineffective assistance of counsel claims are based upon conclusory and unsupported allegations, or are without merit. When there is not even a single constitutional error, there is nothing to accumulate to satisfy the prejudice prong of the Strickland test. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011); Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). Accordingly, the Court finds no error.

8. Ground Eleven

In Ground Eleven, Petitioner claims there was insufficient evidence to sustain his conviction and he challenges, among other things, the informant's credibility and chain of custody of evidence. Construed liberally, Petitioner raised similar insufficient evidence claims in his second direct appeal. In denying this claim, the Arizona Court of Appeals stated:

¶ 4 In his supplemental brief, Guinard argues the superior court abused its discretion in denying his Rule 20 motion because the State failed to test the

methamphetamine baggies for his fingerprints and DNA, thereby presenting insufficient evidence to support his convictions.

¶ 5 Although the State did not test the methamphetamine baggies for Guinard's DNA and fingerprints, it was under no obligation to do so, and it presented substantial evidence supporting the jury's verdicts. See State v. Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (1989) (“Police generally have no duty to seek out and obtain potentially exculpatory evidence.” (citation omitted)); see also State v. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, 198 (2010) (appellate court reviews sufficiency of the evidence by determining whether jury's findings are supported by substantial evidence; that is, evidence that is adequate to support a reasonable person's conclusion of defendant's guilt beyond a reasonable doubt); State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003) (substantial evidence may be direct or circumstantial; denial of Rule 20 motion reviewed for abuse of discretion). At trial, the police informant testified he had worked with police under contract after the State charged him with selling methamphetamine. The contract required the informant to assist police in apprehending other drug dealers. To that end, on April 26, 2012, the informant went to Guinard's home and asked “about meth.” Guinard then handed the informant a “sample” of methamphetamine, which the informant turned over to Detective J. The informant was not wired at the time Guinard gave him the sample.

¶ 6 On May 14, 2012, Detective J assisted the informant in setting up a “controlled buy” with Guinard. Detective J recorded the informant's side of a phone call with Guinard, and the informant could be heard saying, “Hey Jimbo”-Guinard's nickname-and asking to buy some “shit”-a slang term for methamphetamine. After the informant and Guinard established a meeting place, Detective J wired the informant, conducted a thorough search of the informant and his Jeep for drugs and money, gave him $40 to buy the methamphetamine, and followed him to the meeting place.

¶ 7 Detective J saw the informant meet Guinard's brother in the parking lot and observed the two walk to a parked truck. Immediately after the controlled buy, the informant handed Detective J a baggie of methamphetamine, which the informant said he had bought from Guinard. The baggie of methamphetamine the informant gave to Detective J looked like “it was worth $40.00.” Thus, even though the State did not test the methamphetamine baggies for Guinard's DNA and fingerprints, it presented sufficient evidence supporting Guinard's convictions, and the superior court did not abuse its discretion in denying his Rule 20 motion.[]

Guinard, 2015 WL 4747890.

Moreover, in addressing the informant's credibility, the court stated, in pertinent part:

¶ 9 ... whether the informant was credible was an issue for the jury to decide. See State v. Cid, 181 Ariz. 496, 500, 892 P .2d 216, 220 (App. 1995) (“The finder-of-fact, not the appellate court ... determines the credibility of witnesses.”). And indeed, Guinard vigorously attacked the informant's credibility during trial. For example, in his cross-examination of the informant, Guinard highlighted several inconsistencies in the informant's testimony regarding the May 2012 controlled buy. Guinard also established the informant had failed drug tests in July, September, and November 2013, which resulted in a probation violation and 60 days' imprisonment in early 2014. The informant testified his drug test results were positive for methamphetamine because of prescription drugs he was taking, but Guinard presented evidence impeaching that testimony. Further, Detective J and the informant both testified the State had not polygraph or drug tested the informant.

¶ 10 Thus, even though the State did not polygraph or drug test the informant, Guinard was able to argue to the jury the informant “sat in this courtroom and lied.”

Guinard, 2015 WL 4747890.

In Jackson v. Virginia, 443 U.S. 307 (1979), the Court held that a sufficiency-of-the-evidence claim must be rejected unless, based on the evidence presented at trial, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at 324. All evidence must be considered in the light most favorable to the prosecution. Id. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). While the standard under Jackson is deferential, AEDPA applies an additional layer of deference in federal habeas cases. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal court may overturn a state court decision rejecting a sufficiency-of-the-evidence challenge “only if the state court decision was ‘objectively unreasonable.'” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam); see Juan H., 408 F.3d at 1275 n.13. This “double dose of deference ... can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 566 U.S. 1039 (2012); see Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (“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.”).

Moreover, because “a court under Jackson makes no ‘determination of the facts' in the ordinary sense of resolving factual disputes, ” a Jackson claim presented in a federal habeas petition is evaluated under 28 U.S.C. § 2254(d)(1) (unreasonable application of federal law), not 28 U.S.C. § 2254(d)(2) (unreasonable determination of the facts). Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir. 2007) (“We have recently joined our sister circuits in using § 2254(d)(1) to evaluate a state court's sufficiency-of-the-evidence determination under Jackson.”), vacated in part on other grounds, 503 F.3d 822 (9th Cir. 2007), reversed on other grounds, 555 U.S. 179 (2009); see Flores v. Beard, 533 Fed.Appx. 730, 731 n.1 (9th Cir. 2013) (“Because we ‘evaluate a state court's resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2),' we do not address [petitioner]'s § 2254(d)(2) argument.”); Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) (“When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1), ... we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.”).

Petitioner's conclusory allegations claiming that there was insufficient evidence to sustain his conviction goes against the weight of the evidence. Similar to his first state court case, the evidence here consisted of the informant's testimony, Petitioner's statements on the audio recording, and the drugs themselves. Furthermore, any complaint Petitioner raises regarding the informant's credibility is unpersuasive. As noted by the appellate court, it is the province of the jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. As the Ninth Circuit has explained, “[t]he question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991) (citing Jackson, 443 U.S. at 326).

Accordingly, having reviewed the record, the Court finds that Petitioner has failed to establish that the Arizona Court of Appeals' decision is contrary to, or an unreasonable application of, Jackson.

9. Ground Sixteen

In Ground Sixteen, Petitioner alleges that his trial counsel was ineffective for: (a) failing to investigate/independent test of State's evidence, (b) failing to call Donny Guinard as a material defense witness when Donny's testimony would have proven Petitioner was not at the drug buy location, (c) failing to expose State's intimidation tactics utilized against potential defense witness Donny Guinard, (d) failing to effectively object to impermissible State vouching, and or object to trial court's State favored rulings, (e) failing to file motion to impeach State's witness for violating his contract with the State for his probation violations, (f) failing to object the very first time impermissible vouching occurred during re-direct examination, (g) suppressing the evidence for informant violating his contract with the State ineffective assistance, (h) failing to suppress the evidence once it was shown in the record that Petitioner was not seen at the drug transaction location nor was his voice on the audio recording, (i) failing to request the lesser offense added to jury verdict form, (j) failing to present voice recording analysis to provide documentation that Petitioner's voice was not on audio recording, (k) failing to request evidentiary hearing before this trial so the Judge could see just how weak the evidence was to support conviction, (1) failing to get the continuance after State's late disclosure that informant was referred by lead detective to silent witness, (m) failing to request a mistrial as soon as prosecutor vouched for the veracity of his State witness during closing argument and before State's rebuttal, (n) failure to file motion to impeach State's witness's for the numerous inconsistencies in testimony throughout trial and the interviews conducted by trial attorney, and (o) cumulative errors violate due process right to effective assistance of counsel.

Construed liberally, Petitioner presented these ineffective assistance claims in his PCR petition and petition for review to the Arizona Court of Appeals. The state court denied the claims finding:

All of the Defendant's assertions related to his ineffective assistance of counsel claims are either unsupported by the record or simply speculative. For example, independent testing of the drugs for fingerprints or DNA would not have yielded exculpatory evidence even if other persons touched the drugs. The decision whether to call witnesses is a strategy decision and one that could have yielded seriously negative results for the Defendant. The claim that defense counsel failed to object to vouching by the State is completely unsupported by the record.

(Doc. 1-7 at 2-3.)

Once again, Petitioner lists 15 claims of ineffective assistance in his supplement and refers the Court back to his habeas petition to find support for his claims. However, a review of Petitioner's “effectiveness of Petitioners representatives” section reveals an obscure narrative with no clear delineation of claims or arguments in support thereof. Petitioner generally disagrees with every one of counsel's actions and appears to speculate as to whether a different strategy might have been more successful. Petitioner's cursory and conclusory allegations fail to support claims of ineffective assistance. The Court finds that the state court's denial of Petitioner's claims of ineffective assistance was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

10. Ground Seventeen (a)

In Ground Seventeen, Petitioner claims that his appellate counsel was ineffective for filing an Anders brief, and states that counsel failed to raise any arguable claims.

Petitioner's claim is vague and unsupported, making it difficult for the Court to meaningfully address the merits. Petitioner complains that counsel filed an Anders brief, but he fails explain which specific issues counsel should have raised. Once again, Petitioner's conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief. See Jones, 66 F.3d at 204. The state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts. \\\

11. Ground Nineteen (a), (c)-(f) a. Ground Nineteen (a)

In Ground Nineteen (a), Petitioner alleges prosecutorial misconduct for failing to sufficiently develop the record. Petitioner alleges that the State should have subjected its witnesses to a polygraph exam and drug testing. Construed liberally, Petitioner presented a similar claim in his second direct appeal. In denying this claim, the Arizona Court of Appeals stated:

¶ 8 Guinard also argues the State should have polygraph and drug tested the informant “to either uphold or diminish [his] credibility to testify truthfull[y], ” and because the State failed to do so, the informant was not credible. We disagree with Guinard's argument for three reasons. First, polygraph test results are categorically inadmissible at trial absent a stipulation. State v. Perez, 233 Ariz. 38, 42, ¶ 16, 308 P.3d 1189, 1193 (App. 2013). Second, the State's failure to test the informant “without further evidence of materiality to the guilt or innocence of the defendant constitutes no error.” State v. Rhodes, 112 Ariz. 500, 504, 543 P.2d 1129, 1133 (1975).

¶ 9 Third, whether the informant was credible was an issue for the jury to decide. See State v. Cid, 181 Ariz. 496, 500, 892 P .2d 216, 220 (App. 1995) (“The finder-of-fact, not the appellate court ... determines the credibility of witnesses.”). And indeed, Guinard vigorously attacked the informant's credibility during trial. For example, in his cross-examination of the informant, Guinard highlighted several inconsistencies in the informant's testimony regarding the May 2012 controlled buy. Guinard also established the informant had failed drug tests in July, September, and November 2013, which resulted in a probation violation and 60 days' imprisonment in early 2014. The informant testified his drug test results were positive for methamphetamine because of prescription drugs he was taking, but Guinard presented evidence impeaching that testimony. Further, Detective J and the informant both testified the State had not polygraph or drug tested the informant.

¶ 10 Thus, even though the State did not polygraph or drug test the informant, Guinard was able to argue to the jury the informant “sat in this courtroom and lied.”

Guinard, 2015 WL 4747890.

Clearly established Supreme Court law provides that the standard of federal habeas review for a claim of prosecutorial misconduct is “the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Therefore, to prevail on a claim of prosecutorial misconduct, Petitioner must prove not only that the prosecutor's actions were improper but that they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868.

Here, the exact federal claim that Petitioner is alleging is unclear. In any event, credibility issues are for the jury to consider. There is no affirmative duty on the part of the State to polygraph or drug test its own witnesses as a matter of course. The state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

b. Nineteen (c)

In Ground Nineteen (c), Petitioner alleges prosecutorial misconduct for making last minute disclosures on the eve of trial to requested critical impeachment evidence.

Petitioner raised a similar claim in his second direct appeal. In denying this claim, the Arizona Court of Appeals stated:

¶ 20 Guinard also argues the State prejudiced him by disclosing “critical impeachment evidence ... on the eve of trial, ” and, relatedly, the superior court abused its discretion in failing to impose sanctions. We disagree with both arguments.

¶ 21 On the first day of trial, the State disclosed that Detective J had told the prosecutor he “believe[d]” the informant was referred to Silent Witness in order to collect money to assist the informant in “leav[ing] town” because arrests were going to be made. While Detective J did not have any records of the informant being referred to Silent Witness, “he believe[d] that [was] what

occurred in this particular case.” Guinard moved to preclude this information because, ten days earlier during a defense interview, Detective J had stated he could not remember if the informant had been referred to Silent Witness. The superior court, on the record before it, denied Guinard's preclusion request, but did admonish the prosecutor and offered Guinard the option of continuing the trial or taking a recess to reinterview Detective J. Guinard rejected the court's options and instead asked that he be allowed to call “the head of Silent Witness” as a defense witness. The court allowed the additional witness “as a sanction in this case, ” and thus Guinard's argument that the superior court failed to impose sanctions is without merit. See State v. Delgado, 174 Ariz. 252, 257, 848 P.2d 337, 342 (App. 1993) (superior court should use preclusion as a last resort, but otherwise has wide latitude in determining whether to impose sanctions and choice of sanctions for discovery violation); see also Ariz.R.Crim. P. 15.7.

¶ 22 Further, Guinard thoroughly cross-examined Detective J and the informant on the informant's receipt of Silent Witness money. During cross-examination, Detective J testified consistently with his defense interview- he could “not recall the Silent Witness stuff.” The informant testified it was Detective J who told him to get in touch with Silent Witness and that he was paid $400 for Guinard's arrest. And, in closing argument, Guinard argued the informant had “plenty of reasons to set [him] up, ” including receiving money for his arrest. Under these circumstances, the State did not prejudice Guinard through its untimely disclosure.

Guinard, 2015 WL 4747890.

In light of the court's remedial measures and defense counsel's subsequent cross-examination and closing argument, the Court cannot say that the prosecutor's actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” The Court finds that the state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

c. Nineteen (d)

In Ground Nineteen (d), Petitioner alleges prosecutorial misconduct for failing to provide all the evidence with reliable forensic testing (D.N.A. and finger printing) to defense, jury, and court.

Construed liberally, Petitioner raised a similar claim in his second direct appeal. In denying this claim, the Arizona Court of Appeals stated:

¶ 5 Although the State did not test the methamphetamine baggies for Guinard's DNA and fingerprints, it was under no obligation to do so, and it presented substantial evidence supporting the jury's verdicts. See State v. Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (1989) (“Police generally have no duty to seek out and obtain potentially exculpatory evidence.” (citation omitted)) … .

Guinard, 2015 WL 4747890.

While in some instances, the failure of police to collect and preserve potentially exculpatory evidence may violate the due process clause, the police do not have a constitutional duty to perform any particular tests or seek out exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Accordingly, the state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

d. Nineteen (e), (f)

In Ground Nineteen (e), Petitioner alleges prosecutorial misconduct for intentionally and impermissibly vouching to the credibility of State's witness's knowing of corrupted/impeachment issues. In Ground Nineteen (f), Petitioner alleges prosecutorial misconduct for vouching during closing and rebuttal arguments to bolster the material witness's credibility.

In his opening brief in his second direct appeal, Petitioner argued that the prosecutor committed misconduct three times during closing argument by placing the prestige of the government behind its witnesses. In denying this claim, the Arizona Court of Appeals stated:

¶ 15 Guinard argues the prosecutor vouched during closing argument and the superior court failed to take “curative measures, ” including instructing the jury to disregard the prosecutor's “specific erroneous statements.” Impermissible prosecutorial vouching occurs when, as relevant here, “the prosecutor places the prestige of the government behind its witness.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993).

¶ 16 The first instance of alleged prosecutorial vouching occurred in closing argument, when the prosecutor stated, “The State seeks the truth in this matter and only wants to see the truth come out. It's the State's belief the truth is that [Guinard] transferred meth and sold methamphetamine on the dates referenced .... ” (emphasis added). Guinard's counsel asked to approach and said, “I'm not going to ask for a mistrial at this point, but I have every right to do it because that is highly improper....”

¶ 17 The next instance of alleged prosecutorial vouching occurred during the State's rebuttal closing argument, when the prosecutor stated, “It's been presented to you that the State is not serving justice or is doing something improper. The State seeks the truth and will endure whatever the consequences may be. If the State believed [Guinard] was innocent, [the] State would have dismissed the charges long ago.” (emphasis added). The prosecutor then argued:

It's the State's belief, after you look at each and every piece of evidence ... that was presented on the stand, that you look at [the informant] as you observed him here on the stand, and his testimony, his demeanor, that he was truthful in telling you ... exactly what occurred both those days. State believes it's presented sufficient evidence to leave each and every one of you firmly convinced of [Guinard's] guilt[ ].

(emphasis added). Guinard's counsel objected after the prosecutor concluded but once again declined to move for a mistrial, stating, “I don't want a mistrial, because I think that the evidence is very strong in the favor, for the lack of evidence, of Mr. Guinard....”

¶ 18 The quoted statements italicized above did indeed place the prestige of the government behind its witnesses and thus constituted impermissible vouching.[] It was improper for the prosecutor to preface his remarks with variations of “the State's belief.” The prosecutor, however, did not simply state his personal belief during closing and rebuttal arguments. He presented his argument in the context of the trial evidence and told the jury, “What this case comes down to is the credibility of [the informant], and it's your job to judge the credibility.” See State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997) (prosecutor's remarks that witnesses testified “truthfully, ” when viewed in context, were sufficiently linked to trial evidence).

¶ 19 Further, the superior court properly instructed the jury that the lawyers' arguments were not evidence and it was to determine the “accuracy” of the

witnesses' testimony. Our supreme court has instructed that we are to presume jurors follow the court's instructions. See Morris, 215 Ariz. at 336- 37, ¶ 55, 160 P.3d at 215-16 (superior court may cure error resulting from prosecutorial misconduct by instructing jury not to consider attorneys' arguments as evidence). Thus, the superior court cured any error in prosecutorial vouching through its instructions.

Guinard, 2015 WL 4747890.

Although Petitioner challenges the alleged improper vouching by relying on the prestige of the government, he does not address why the appellate court's resolution his claims of prosecutorial misconduct was contrary to, or an unreasonable application of, federal law. Moreover, and as noted by the court, even if the prosecutor made improper statements and arguments, the court gave curative instructions to the jury. Thus, the jury presumably disregarded any inadmissible evidence or arguments and no due process violation occurred. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Petitioner has not offered any arguments to overcome this presumption. See id.

Because Petitioner has not established that the prosecutor engaged in misconduct that gave rise to a due process violation, he cannot show that the state court's rejection of this claim is contrary to, or an unreasonable application of, clearly established federal law.

12. Twenty (a), (c), (e), (i)-(j)) a. Ground Twenty (a)

In Ground Twenty (a), Petitioner alleges judicial bias and malfeasance for refusing to sever the counts from April 26, 2012 and May 14, 2012 after trial counsel warned the court the jury would see April 26 count as prior bad act.

Petitioner raised a similar claim in his second direct appeal arguing that the trial court abused its discretion in not severing the counts from April 26, 2012 and May 14, 2012. In denying this claim, the Arizona Court of Appeals stated:

¶ 11 Guinard next argues the superior court should have severed the April 26, 2012 counts from the May 14, 2012 counts, and because it failed to do so, it prejudiced him. As we construe Guinard's argument, he was entitled to severance as a matter of right under Arizona Rule of Criminal Procedure 13.4(b) because the counts were joined solely by virtue of Rule 13.3(a)(1).[]

Because Guinard objected to the joinder and timely renewed his objection, we review the superior court's denial of his motion to sever for an abuse of discretion, and, as we explain, even if we assume arguendo the superior court should have severed the April counts from the May counts, Guinard was not prejudiced. See State v. Burns, 237 Ariz. 1, __, ¶ 29, 344 P.3d 303, 315 (2015) (appellate court reviews for abuse of discretion and will reverse only if defendant can show “compelling prejudice against which the trial court was unable to protect” (citation omitted) (internal quotation marks omitted)); see also Ariz.R.Crim. P. 13.4.

¶ 12 First, the jury found Guinard not guilty on the April counts. Second, the superior court properly admitted evidence of the April counts to explain the background for the controlled buy and, thus, the May counts. See State v. Price, 123 Ariz. 166, 168, 598 P.2d 985, 987 (1979) (“Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that [p]roof of one incidentally involves the other or explains the circumstances of the crime.” (citation omitted)).

¶ 13 Third, the superior court properly instructed the jury on the State's burden of proof as to each element of each count and that it should consider each count separately. And fourth, the likelihood that the jury confused the counts was minimal, especially because, as noted, the jury found Guinard not guilty on the April counts.[] See State v. Comer, 165 Ariz. 413, 418, 799 P.2d 333, 338 (1990). Therefore, under these circumstances, Guinard was not prejudiced by the superior court's refusal to sever the counts against him.

On habeas review of a prisoner's challenge to a trial court's failure to sever trial of some counts in an indictment, we may only grant the writ if the joinder resulted in an unfair trial. See Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir. 2000). There is no prejudicial constitutional violation unless “simultaneous trial of more than one offense ... actually render[ed] petitioner's state trial fundamentally unfair and hence, violative of due process.” Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991). This prejudice is shown if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict. See Bean v. Calderon, 163 F.3d 1073, 1086 (9th Cir. 1998), cert. denied 528 U.S. 922 (1999).

We have recognized that the risk of undue prejudice is particularly great whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible. See United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir. 1986). Undue prejudice may also arise from the joinder of a strong evidentiary case with a weaker one. See id.; Bean, 163 F.3d at 1085. The reason there is danger in both situations is that it is difficult for a jury to compartmentalize the damaging information. See Bean, 163 F.3d at 1084.

The Court's review of the record reveals that Petitioner was not prejudiced by the joinder of the April 26, 2012 and May 14, 2012 counts given the relative strength of the State's case on both sets of crimes, and the cross-admissibility of the evidence on each set. And, significantly, there was no apparent difficulty for a jury to compartmentalize or confusion of the evidence or crimes as demonstrated by the jury's not guilty determination on the April counts.

Accordingly, the state court's denial of this claim was neither contrary to, nor did it involve an unreasonable application of, clearly established Federal law, nor was it based on an unreasonable determination of facts.

b. Ground Twenty (c)

In Ground Twenty (c), Petitioner alleges judicial bias and malfeasance for failing to instruct the jury on specific improper vouching statements made by the prosecutor in both trials to bolster informants testimony during closing and rebuttal arguments that put State's belief and prosecutor's personal opinions behind vouching.

Petitioner presented a similar claim in his opening brief in his second direct appeal. In denying this claim, the Arizona Court of Appeals stated, in part:

¶ 19 Further, the superior court properly instructed the jury that the lawyers' arguments were not evidence and it was to determine the “accuracy” of the witnesses' testimony. Our supreme court has instructed that we are to presume jurors follow the court's instructions. See Morris, 215 Ariz. at 336- 37, ¶ 55, 160 P.3d at 215-16 (superior court may cure error resulting from prosecutorial misconduct by instructing jury not to consider attorneys' arguments as evidence). Thus, the superior court cured any error in prosecutorial vouching through its instructions.

Guinard, 2015 WL 4747890.

As the appellate court found, the trial court did, in fact, properly instruct the jury that the lawyers' arguments were not evidence and that the jury was to determine the “accuracy” of the witnesses' testimony. The court also noted that “we are to presume jurors follow the court's instructions.” Moreover, Petitioner fails to indicate what specific vouching instruction should have been used, and he appears to simply speculate that the superior court's instruction was insufficient.

Petitioner has not established that the state court's rejection of this claim is contrary to, or an unreasonable application of, clearly established federal law.

c. Ground Twenty (e), (i), (j)

In Ground Twenty (e), Petitioner alleges judicial bias and malfeasance for precluding issues in PCR petition without granting evidentiary hearing since perjured testimony was used to support crucial elements of the crime. In Ground Twenty (i), Petitioner alleges judicial bias and malfeasance for abusing its power by not fully examining Petitioner's PCR claims in petition for review and sending a form letter denial to claims, the same form letter quoting the same case law to at least five other individuals on this complex alone and received at the same time, at least one individual was a murder case and the appellate court just cleared it's docket. In Ground Twenty (i), Petitioner alleges judicial bias and malfeasance for abusing its power by not fully reviewing Petitioner's claims or addressing claims of appellate court only clearing docket.

A habeas petition must allege the petitioner's detention violates the constitution, a federal statute, or a treaty. See 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21, (1975). A petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings. See Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (errors committed during state post-conviction proceedings are not cognizable in a federal habeas action); 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”). Accordingly, the claims alleged in Ground Twenty (e), (i), and (j) are not cognizable on habeas review.

CONCLUSION

Having determined that Petitioner's grounds for relief are procedurally defaulted without an excuse for the default, insufficiently pled, non-cognizable, or meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus and supplement (Docs. 1, 6) be denied and dismissed with prejudice.

IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus and supplement pursuant to 28 U.S.C. § 2254 (Docs. 1, 6) be DENIED and DISMISSED WITH PREJUDICE;

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

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. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, 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 seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.

Guinard v. Shinn

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Guinard v. Shinn

Guinard v. Shinn

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Guinard v. Shinn

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Guinard v. Shinn

Guinard v. Shinn

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