Opinion
CV 23-00567 PHX ROS (CDB)
11-09-2023
Byron Trenell Hamphill-Wooten, Petitioner, v. Ryan Thornell, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROSLYN O. SILVER:
This matter was referred pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for a report and recommendation. Petitioner Byron Hamphill-Wooten (“Wooten”), proceeding pro se, seeks relief from his state court convictions pursuant to 28 U.S.C. § 2254.
I. Background
The following is provided by the Arizona Court of Appeals:
A.A. contacted Wooten, a friend from high school, after losing her home sometime between February and March of 2016. Wooten agreed to help A.A., allowed her to move into his home, and brought her to San Diego. Soon after moving in, Wooten instructed A.A. that she would need to prostitute herself to make money to assist in paying bills.
A.A. did not wish to prostitute herself, but feared she would lose her place to stay if she did not. Wooten instructed A.A. on the rules of prostitution including whom to talk to, where to go, how to dress, and what to charge. Wooten created online advertisements soliciting sexual services from A.A. Wooten also set the amount of money A.A. was to make each night and kept all the money.
Wooten first brought A.A. to Phoenix in March 2016, with the intention of testing the Phoenix prostitution market, and later brought A.A. back to Phoenix with another woman. Phoenix police made first contact with A.A. while she was working and told her they would assist her if she wanted to get out of prostitution. A.A. remained fearful of Wooten but accepted a detective's contact information. The next day A.A. contacted the detective and told her she wanted to get out of prostitution. A.A. and the detective met and faked A.A.'s arrest to remove her from Wooten without suspicion. A.A. assisted the police in investigating Wooten, and the police took her to a domestic violence shelter.
After being brought to the domestic violence shelter, A.A. contacted Wooten in an attempt to retrieve her belongings from him. Wooten refused to give A.A. her belongings unless she left the shelter with him, and A.A. agreed. Shortly after leaving with Wooten, A.A. was able to contact police, and police again removed her from the situation. Wooten was arrested soon after.
Wooten was indicted on 13 counts of sex trafficking and two counts of kidnapping. After a 10-day jury trial, Wooten was found guilty on 13 counts of sex trafficking, Class 2 felonies, and one count of unlawful imprisonment, a Class 1 misdemeanor [a lesser-included charge of kidnapping]. ...
The court sentenced Wooten to seven concurrent aggravated terms of 10 years' imprisonment for Counts 1 through 7.... The court sentenced Wooten to six concurrent aggravated terms of 18.5 years' imprisonment for Counts 8 through 13. The court ordered the sentences for Counts 8 through 13 to run consecutive to Counts 1 through 7. The court sentenced Wooten to a term of six-months' imprisonment for Count 14 for unlawful imprisonment, to run concurrent to Counts 1 through 7. .State v. Wooten, 2018 WL 1870562, at *1-2 (Ariz.Ct.App. Apr. 19, 2018).
Wooten did not testify at trial. (ECF No. 8-1 at 23). At the conclusion of the State's case the trial court granted a Rule 20 motion for a verdict of acquittal only with regard to Count 15. (ECF No. 8-1 at 23).
Wooten was appointed appellate counsel, who filed an Anders brief and asked the Court of Appeals to search the record for arguable issues. (ECF No. 8-1 at 16-45). Wooten filed a pro per appellate brief, raising the following claims:
1. Whether it was improper to charge Appellant with separate counts in a multiplicitous indictment where Appellee alleges a “common scheme” or pattern of similar criminal conduct on a continuous basis.
2. Whether Appellant's right to a speedy trial was violated.
3. Whether it was improper for the state to play telephone recordings of Appellant's conversations with non-testifying “witnesses” who had nothing to do with the alleged charges.
4. Whether the state's failure to notify Appellant of its intent to use its lead investigator [] DeCoufle as an “expert witness” impaired Appellant's ability to present a complete defense, and whether the trial court abused its discretion to Appellant's prejudice when no expert witness had been qualified pretrial.
5. Whether the jury received improper or insufficient instructions.
6. Whether the final deliberating jury included a fair, representative number of members of Appellant's race.
7. Whether Appellant was convicted on sufficient evidence, or weight thereof.
8. Whether the sentences are unduly harsh under the circumstances, or not in conformity with established principles.
9. Whether Appellee engaged in prejudicial prosecutorial misconduct.
10. Whether the cumulative effect of the errors at and before trial deprived Appellant of a fair trial or due process of law.(ECF No. 8-1 at 56-57).
The Arizona Court of Appeals denied relief and the Arizona Supreme Court denied review. See Wooten, 2018 WL 1870562, at *1.
Wooten filed a timely petition for state post-conviction relief. (ECF No. 8-2 at 3861). Through post-conviction counsel, Wooten asserted his trial counsel was ineffective for failing “to explain to [him] that Detective DeCoufle [a case agent who testified at trial] could be and likely would be recognized as an expert witness at trial.” (ECF No. 8-2 at 51). Wooten noted that, although the State failed to notice DeCoufle as an expert witness before trial, it requested an expert-witness jury instruction and defense counsel “did not object to such a request given the lack of notice.” (ECF No. 8-2 at 52). Wooten argued defense counsel should have objected to the instruction or, “[a]t the very least, ... taken that opportunity to ask for leave to explore and pursue a defense expert of its own.” (Id.) Wooten argued his trial counsel also failed “to object in a timely manner to Detective DeCoufle being recognized as an expert witness.” (ECF No. 8-2 at 57-58).
In his petition for post-conviction relief Wooten's counsel stated:
Catching up to just after the State rested and the defense's Rule 20 was denied, the issue of whether or not Detective DeCoufle was an expert surfaced. (See Attachment D, R.T. 1-11-17, for Trial Day 7 at 67). Trial defense counsel noticed that one of the jury instructions submitted to the trial court was an instruction regarding an “expert witness.” Id. The defense pointed out how no expert testified and therefore, the instruction could be omitted. Id. The State replied that Detective DeCoufle was the expert. Id. Defense pointed out how there was no notice of an expert and no expert report disclosed. Id. In support of the State's arguments, the prosecution mistakenly contended that Detective DeCoufle was noticed as an expert. Id. Also in support of the State's arguments, the detective testified without objection. Id. That is, the expert testimony was elicited by the State without objection.
***
The trial Court allowed the expert jury instruction due to the lack of objection from defense. Id. at 7. The Court found that the expert instruction regarding Detective DeCoufle was appropriate to provide to the jury. Id. The trial Court explained that despite its understanding that the State failed to comply with the disclosure rule, the trial defense failed to object to the testimony “on the basis of any expert testimony.” Id. ... Finally, the Court reasoned that the prejudice was “not so great” as to exclude the instruction. Id.(ECF No. 8-2 at 45-48).
In its response to the petition for post-conviction relief, the State noted:
The record in this case reflects that, prior to trial, the parties participated in a settlement conference, during which the prosecutor told Defendant the following:
Another thing that I think is important for you to understand is that Detective DeCoufle is an expert in the area of Sex Trafficking. And she's going to provide that testimony about how this type of relationship, if you want to call it that, because that's surely not what we're going to call it, was a very typical pimp/prostitute relationship, that the rules you laid out were very typical of a pimp. And, also, that you were doing everything consistent with what a pimp does, which is trying to distance yourself by using her email address, using her phone number, things of that nature. .
While Defendant may be technically correct that his attorney did not advise him that Detective DeCoufle would likely be recognized as an expert witness in this case, the record from the settlement conference clearly reflects that Defendant was informed by the prosecutor that the State intended to call Detective DeCoufle as an expert witness during trial and the record further reflects that Defendant was also informed by the prosecutor of precisely what Detective DeCoufle's trial testimony would be. (See id.) Therefore, Defendant cannot establish that he suffered any prejudice even if his attorney did not inform him that Detective DeCoufle would likely be recognized as an expert witness at trial.(ECF No. 8-2 at 72-73) (internal citation omitted, emphasis in original).
The state habeas court, which was also the convicting court, denied relief. (ECF No. 8-2 at 109-12). The court found and concluded:
Here, the State's case agent testified during trial. The case agent gave testimony based on her training and experience. The State did not disclose the case agent as an expert before trial but she was disclosed as a witness. The State and trial counsel both filed proposed jury instructions, including the expert witness instruction. On settling jury instructions, the Court granted the State's request for a jury instruction regarding expert witness based on the testimony elicited. Defendant objected at trial to the instruction because the case agent was not previously disclosed as an expert. The Court overruled the objection noting that trial counsel had not objected during her testimony based on a lack of disclosure. The Court gave the instruction over trial counsel's objection. The record reflects defense had an opportunity to interview and cross-examine the case agent. The State disclosed the case agent in its Rule 15.1 filed on June 29, 2016. The record further reflects that the scope and general nature of the case agent's testimony was known to trial counsel and Wooten based on the pre-trial motion practice and settlement conference.
Wooten asserts ineffective assistance based on the following: 1) trial counsel failed to explain to him that the case agent could be and likely would be recognized as an expert witness at trial; and 2) trial counsel failed to object in a timely manner to the case agent being recognized as an expert. Even if counsel's failures were unreasonable, Wooten has not established prejudice. First, the record in this matter establishes that Wooten participated in a settlement conference in advance of trial. During the settlement conference, the State expressly referenced the case agent, that she was an expert in the area of sex trafficking, and her anticipated testimony. R.T., 11/18/16 at 9. Notwithstanding having been presented with this information, Wooten rejected the notion of a plea. Id. at 12. “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of deficient performance, defendants must demonstrate a reasonable probability that they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Missouri v. Fry, 566 U.S. 134, 147 (2012). In this case, the State did not make a plea offer. At the settlement conference, the Court confirmed that a plea offer had not made [] up to that point and encouraged Wooten to tell the State if he was interested in a plea. After hearing about the proposed testimony of the case agent, Wooten disagreed with the State's case, confirmed he did not want to settle, and confirmed he wanted to go to trial. Id. at 12. Even if trial counsel failed to give appropriate advisements, Defendant was clear about his lack of interest in a plea. Id. at 12-13.
Wooten further asserts he was “robbed of the opportunity to consult with an expert in his own defense in the field of sex trafficking.” Petition at 21. He further asserts that had he been given the opportunity to call an expert in his defense, “the jury could have rendered different verdicts.”
Petition at 23. Wooten asserts in the Reply that “a defense expert could have and would have provided scrutiny to the case agent's conclusions and opinions.” Reply at 22. Wooten has not established that the outcome of his case probably would have been different if he had the opportunity to consult with an expert in sex trafficking. Petition at 21-23. As noted above, under Strickland, Wooten has to show a reasonable probability that that the result of the proceeding would have been different. See also State v. Nash, 143 Ariz. 392, 398 (“A ‘reasonable probability' is less than more likely than not but more than a mere possibility.”') (quoting Strickland, 466 U.S. at 694). Wooten provides only speculation that the “the jury could have rendered different verdicts” or that the result would have been different. For example, Wooten did not provide any expert affidavit regarding sex trafficking. State v. Meeker, 143 Ariz. 256,264 (1984). Even if an affidavit is not required, Wooten failed to identify any specific testimony by the case agent that he believes was incorrect or that would have been rebutted by expert testimony.
Second, trial counsel's failure to timely object as a basis for relief is belied by the opinion issued by the Court of Appeals. Specifically, the Court of Appeals concluded that the trial court's decision qualifying the case agent as an expert was appropriate. State v. Wooten, at 5 []. Accordingly, even if trial counsel had timely objected, the objection would have been properly overruled. [footnote 2: ... The Court further notes that the comprehensive pre-trial conference statement submitted by the parties reflects that one expert was anticipated for trial. Comprehensive Pre-Trial Conference Statement submitted August 9, 2016. Docket Code 167”](ECF No. 8-2 at 111-13).
The Arizona Court of Appeals granted review but denied relief, and the Arizona Supreme Court denied review. See State v. Wooten, 2021 WL 6071544, at *1 (Ariz.Ct.App. Dec. 23, 2021).
II. Claims for Relief
In his § 2254 petition Wooten asserts:
1. His right to due process was violated because “there is no probable cause,” and “Hannah priors violating the Due Process.” (ECF No. 1 at 6). Wooten alleges he was “denied time after time by the lower courts. Simply because the evidence will show that the states factual evidence was not concrete.” (Id.). He further contends the “courts” improperly “denied the Petitioner to obtain expert witness on behalf of the Petitioner. The State was allowed all their witnesses to solidify their manipulated charges.” (Id.).
2. “Manifest Injustice, Double Jeopardy and cruel and unusual punishment.” (ECF No. 1 at 7). Wooten asserts the prosecutor “did not obtain and supply any probable cause,” and that he was “charged twice for the same ‘alleged crimes.' (refer to counts 1-13 and count 14).” (Id.). Wooten contends “per the indictment the state used the same charges to aggravate the petitioner's sentence as the state was angry that the Petitioner did not want to submit to a ‘plea agreement.'” (Id.).
3. “F.R.A.P. 9(a)(1)(2)(3) - United States v. Giangrosso, 763 F.2d 849 (1985) & 3142.” (ECF No. 1 at 8). Wooten contends he “qualifies under this Rule.” (Id.). He asserts the Court “must state in writing or orally on the record.” (Id.). He further asserts that this rule “implies that the judicial officer shall order the pretrial release of the person on personal recognizance,” and “the petitioner may receive relief due to its arbitrary and purposeless must not be inflicted under the constitutionally of the law.” (Id.).
Wooten does not present any other factual or legal support for his § 2254 claims.
The Court ordered Respondents to answer Wooten's first and second claims for relief, concluding the third claim did not assert a legitimate basis for federal habeas relief. (ECF No. 4 at 2 & n.1).
III. Analysis
A. Governing Law
1. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In non- capital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented their claim to the Arizona Court of Appeals in their direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in their § 2254 petition. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in their appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004) (emphasis added).
A federal habeas petitioner has not exhausted a federal habeas claim if they still have the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id., 548 U.S. at 92.
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his
claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, the petitioner bears the burden of establishing that some objective factor external to the defense impeded their compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the state's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice a habeas petitioner must show the alleged error “worked to [their] actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Id. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019).
Petitioners who default federal habeas claims may also obtain review if they show that a failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, they have a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
2. Standard of review regarding properly exhausted claims for relief
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court unless the state court's decision denying the claim was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,'” or was “‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting28 U.S.C. § 2254(d). See also Mays v. Hines, 141 S.Ct. 1145, 1149 (2021); Lafler v. Cooper, 566 U.S. 166, 17273 (2012). A state court decision is contrary to federal law if the state court applied a rule contradicting the governing law established by the United States Supreme Court, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Broun v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). Furthermore, the state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010) (stating the AEDPA created “a substantially higher threshold for obtaining relief than de novo review”); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “‘A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'” Woods v. Etherton, 578 U.S. 113, 116-17 (2016), quoting Harrington, 562 U.S. at 101.
B. Analysis of Wooten's Claims for Relief
1. Due process
In his first claim for relief, Wooten contends his Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights to due process and equal protection were violated because the State's “factual evidence was not concrete;” because “manifest injustice occurred” when the courts did not allow him to retain a defense expert witness; and because the State “was allowed all its requested witnesses which allowed the prosecution to “solidify [its] manipulated charges.” (ECF No. 4 at 1).
a. “factual evidence was not concrete”
Construing the first part of this claim as an insufficiency of the evidence claim, Respondents allow Wooten raised an insufficiency of the evidence claim on appeal, but argue he did not properly exhaust the claim in the state court as one asserting a violation of his federal constitutional rights.
In his pro se appellate brief Wooten cites to United States Supreme Court opinions, including In re Winship (ECF No. 8-1 at 52-54), although he does not mention Jackson v. Virginia, the controlling Supreme Court opinion regarding the quantum of evidence required to sustain a state criminal conviction, see Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009). In his brief Wooten contested whether he stood “convicted on sufficient evidence, or weight thereof.” (ECF No. 8-1 at 57). He noted the trial court granted his Rule 20 motion only with regard to Count 15, denying the motion as to all other counts. (ECF No. 8-1 at 79). Wooten asserted “the trial court abused its discretion to his prejudice when it did not enter acquittals for all the counts as there truly was insufficient evidence on which to convict for any of the charged crimes.” (Id.) (emphasis in original). He alleged the jury returned guilty verdicts because it was “improperly exposed to irrelevant, inadmissible audio recordings,” “unbalanced ‘expert' opinion testimony,” and “improperly instructed.” (Id.). Wooten also asserted all of the evidence presented by the State was “purely circumstantial.” (ECF No. 8-1 at 81). In this section of his brief Wooten does not mention due process or any federal constitutional guarantee or any federal court opinion. (ECF No. 8-1 at 79-81).
Wooten failed to properly exhaust an insufficiency of the evidence claim in the state courts by fairly presenting the claim as one alleging the violation of a federal constitutional right. To fairly present a constitutional claim in the state courts the petitioner must “plainly” identify a specific constitutional guarantee in his state court pleading. “Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005). See also Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Wooten did not “plainly” identify or articulate a specific federal constitutional guarantee regarding the sufficiency of the evidence in his state court pleadings. See Castillo, 399 F.3d at 1002 (holding a habeas petitioner did not give the state appellate court the fair opportunity to rule on a federal due process claim by concluding their brief with a scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory). See also Fields, 401 F.3d at 1021 (noting exhaustion demands more than a citation to a general constitutional provision, detached from any articulation of the underlying federal legal theory); Hiivala, 195 F.3d at 1106 (“Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”); Jackson v. Jackson, 2021 WL 3622042, at *5 (W.D. Wash. July 21, 2021) (“Under Ninth Circuit caselaw, a petitioner must make the federal basis of the claim explicit either by referencing specific provisions of the federal constitution or statutes, or citing to federal or state cases involving the legal standard for a federal constitutional violation.”) (citing cases). In his state appellate brief Wooten did not even make a “drive-by” citation to due process or the controlling federal law, i.e., Jackson v. Virginia, regarding insufficiency of the evidence.
Arizona's laws regarding timeliness, waiver, and the preclusion of claims bar Wooten from returning to the state courts in an attempt to properly exhaust a Jackson claim. Accordingly, the claim is exhausted but procedurally defaulted. With regard to Respondents' contention that he procedurally defaulted this claim, Wooten contends he “has in fact raised these claims prior to any pre-trial court appearance, and throughout the trial process, wherefore this statement (page 9, lines 1-10) holds no weight.” (ECF No. 9 at 2). He further asserts Respondents' argument is a “weak presentation, as this court has already agreed to hear two grounds of this case for numerous constitutional violations.” (ECF No. 9 at 3).
Wooten fails to establish cause for or prejudice arising from his procedural default of this claim for relief. Additionally, Wooten does not argue his factual, rather than legal, innocence of the crimes of conviction and, therefore, he fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of this claim.
Additionally, Wooten's insufficiency of the evidence claim may be denied on the merits. The Arizona Court of Appeals denied relief on this claim as presented to it, finding and concluding:
The State presented evidence of Wooten's own statements in the form of jail calls, along with testimony from the lead detective and expert in the case, which included information related to the investigation and the statements of other witnesses and the victim. The calls demonstrated that Wooten continued to instruct other women on how to prostitute themselves and evade police detection while he was in jail.
***
Here, the evidence summarized above was sufficient to support the jury's verdicts. The victim, as well as multiple investigators, detectives, and experts all testified at trial. The jury found the testimony of witnesses and exhibits admitted credible and convicted Wooten of Counts 1 through 14. There is sufficient evidence to support the conclusion reached by the jury.Wooten, 2018 WL 1870562, at *3 & *6.
As noted supra, the governing federal law regarding an insufficiency of the evidence claim is stated in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (concluding federal relief on an insufficient evidence claim is available only if, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found proof beyond a reasonable doubt). “A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence .” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011) (internal quotations omitted). A federal court may overturn a state court decision regarding insufficiency of the evidence only if the state court decision was “objectively unreasonable.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). This “double dose of deference ... can rarely be surmounted.” Boyer, 659 F.3d at 964. See also Coleman v. Johnson, 566 U.S. 650, 651 (2012). In considering an insufficiency of the evidence claim the federal habeas court must assume the trier of fact resolved any evidentiary conflicts in favor of the prosecution and must defer to such resolution. Generally, the credibility of witnesses is beyond the Court's review of the sufficiency of the evidence. See Schlup v. Delo, 513 U.S. 298, 330 (1995). Additionally, even when the evidence is “almost entirely circumstantial and relatively weak,” it may be sufficient to support a conviction. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).
The appellate court's conclusion that there was sufficient evidence presented at trial to support Wooten's convictions, citing the extensive evidence presented at trial, was not clearly contrary to nor an unreasonable application of federal law. And the appellate court's determination establishes Wooten cannot establish any prejudice arising from his procedural default of this claim.
Wooten did not properly exhaust his insufficiency of the evidence claim by presenting it to the Arizona Court of Appeals as a claim that his federal constitutional constitutional right to due process of law was violated. Wooten fails to establish cause for, or prejudice arising from, his procedural default of this claim, nor has he established a fundamental miscarriage of justice will occur absent consideration of the merits of the claim. Furthermore, the claim may be denied because the record indicates there was sufficient evidence, including witnesses' testimony and circumstantial evidence, to support Wooten's convictions.
b. “the right to obtain [an] expert witness”
Wooten also asserts his Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights were violated because “manifest injustice occurred when the courts denied [him] the right to obtain [an] expert witness.” (ECF No. 1 at 6). Wooten arguably did not “fairly present” the same claim raised in his federal habeas petition to the Arizona Court of Appeals, because he does not clearly present the same factual basis for this claim and cite the same federal constitutional guarantee in his § 2254 petition as in his appellate brief. In his pro se state appellate brief Wooten alleged “the state's failure to notify Appellant of its intent to use its lead investigator [] DeCoufle as an ‘expert witness' impaired Appellant's ability to present a complete defense, and whether the trial court abused its discretion to Appellant's prejudice when no expert witness had been qualified pretrial.” (ECF No. 8-21 at 56). In the last sentence of this section of his appellate brief Wooten cites Chambers v. Mississippi, 410 U.S. 284 (1973) for the proposition that “reversal [is] required on violation of defendant's due process right to present a full defense.” (ECF No. 8-1 at 74). In his § 2254 petition Wooten asserts simply that at some point the trial court “denied” his his “right” to secure an expert witness for the defense, resulting in “manifest injustice.”
The Chambers opinion notes: “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
Wooten did raise a claim regarding his “inability” to obtain a defense expert in his state habeas petition, asserting his trial counsel was ineffective for failing to obtain a defense expert after DeCoufle was “qualified” as an expert; it is notable that DeCoufle was never explicitly “qualified” as an expert witness before or at trial, as the issue was not raised until the trial court considered final jury instructions. In denying relief on this claim the state habeas trial court found and concluded:
Wooten further asserts he was “robbed of the opportunity to consult with an expert in his own defense in the field of sex trafficking.” Petition at 21. He further asserts that had he been given the opportunity to call an expert in his defense, “the jury could have rendered different verdicts.” Petition at 23. Wooten asserts in the Reply that “a defense expert could have and would have provided scrutiny to the case agent's conclusions and opinions.” Reply at 22. Wooten has not established that the outcome of his case probably would have been different if he had the opportunity to consult with an expert in sex trafficking. Petition at 21-23. As noted above, under Strickland, Wooten has to show a reasonable probability that that the result of the proceeding would have been different. See also State v. Nash, 143 Ariz. 392, 398 (“A ‘reasonable probability' is less than more likely than not but more than a mere possibility.”‘) (quoting Strickland, 466 U.S. at 694). Wooten provides only speculation that the “the jury could have rendered
different verdicts” or that the result would have been different. For example, Wooten did not provide any expert affidavit regarding sex trafficking. State v. Meeker, 143 Ariz. 256,264 (1984). Even if an affidavit is not required, Wooten failed to identify any specific testimony by the case agent that he believes was incorrect or that would have been rebutted by expert testimony.(ECF No. 8-2 at 111).
Wooten is unable to establish prejudice arising from any procedural default of a due process claim regarding an inability to present a complete defense because he was not provided an expert witness. Notably, Wooten never requested appointment of a defense expert prior to trial or presented, during his appeal or post-conviction proceedings, the affidavit of an expert regarding how expert testimony might have swayed the jury's verdict. Wooten's conclusory allegations regarding what testimony might have been elicited from a defense expert do not warrant federal habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Nor is Wooten entitled to relief on the merits of a Chambers claim. Chambers requires a defendant to comply with a state's procedural rules regarding the admission of relevant evidence, see 410 U.S. at 302, and Wooten did not request appointment of a defense expert prior to trial despite being on notice regarding DeCoufle's proposed testimony and established qualifications. Additionally, to be entitled to relief pursuant to Chambers, a petitioner must establish the trial court's error in excluding testimony had a “substantial and injurious effect or influence” on the jury's verdict, i.e., that excluded evidence was “critical” to the defense. 410 U.S. at 294, 302. As noted by the state habeas trial court in assessing prejudice in the context of a Strickland claim, there is no reasonable probability that, but for the presentation of a defense expert witness, the outcome of Wooten's trial would have been different given the weight of the evidence against Wooten, including his own recorded statements made from jail, the testimony of the victim, and other extensive testimonial and circumstantial evidence. (ECF No. 8-1 at 26-39 (describing the extensive trial testimony and other evidence presented at trial)).
c. “Hannah priors”
In his first claim for federal habeas relief Wooten also asserts the use of “Hannah priors violat[ed] ... due process procedures.” (ECF No. 1 at 6).
Wooten did not fairly present to the state courts a claim regarding the use of “Hannah priors” to enhance his sentences. To present this claim in a procedurally correct manner Wooten was required to present the issue to the Arizona Court of Appeals in his direct appeal, and he did not present this claim in his pro se appellate brief. Wooten fails to establish cause for, or prejudice arising from, his procedural default of this claim and he has not established a fundamental miscarriage of justice will occur absent consideration of this claim for relief.
Additionally, a claim regarding a state court's construction of its sentencing statutes is not cognizable in a federal habeas action. A federal habeas court is “bound by a state court's construction of its own penal statutes.” Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). See also Missouri v. Hunter, 459 U.S. 359, 366 (1983). Even if the sentencing court erred, “[a]bsent a showing of fundamental unfairness, [even] a state court's misapplication of its own sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). See also Cacoperdo v. Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994) (holding the petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (concluding the defendant's claim that the state court was required to merge his convictions was not cognizable); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the petitioner's claim that the trial court violated a provision of state law in sentencing him was not cognizable). Accordingly, Wooten's sentencing claim fails because a challenge to a state court's application of state sentencing laws does not create a federal question cognizable in federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992) (“[a]s the Supreme Court has stated time and again, federal habeas corpus relief does not lie for errors of state law”); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989).
2. Multiplicitous charging and sentencing
In his second claim for federal habeas relief Wooten asserts he was subjected to “Manifest Injustice, Double Jeopardy and cruel and unusual punishment.” (ECF No. 1 at 7). Wooten asserts the prosecutor “did not obtain and supply any probable cause,” and that he was “charged twice for the same ‘alleged crimes.' (refer to counts 1-13 and count 14).” (Id.). Wooten contends: “per the indictment the state used the same charges to aggravate the petitioner's sentence as the state was angry that the Petitioner did not want to submit to a ‘plea agreement.'” (Id.).
This claim was exhausted in the state appellate court, in which Wooten argued:
It was improper [for the State] to charge [Wooten] with separate counts in a multiplicitous indictment where [the State] alleges a “common scheme” or pattern of similar criminal conduct on a continuous basis.
***
[The State] charged [Wooten] with a series of undifferentiated ats alleged to have occurred over several days, the impetus of which acts can only be understood as a single continuous impulse to engage in trafficking of one alleged victim.
***
If [he] had been charged properly, viz. one count for the one alleged continuous scheme of sex trafficking, he would have faced a considerably less harsh sentence-no more than a maximum aggravated term of 12.5 years. Therefore, [Hamphill-Wooten] submits he is prejudiced by the multiplicitous indictment because it resulted in excessive and double punishment.....
To limit [the] injurious effects [of a “unnecessarily grim or ‘heavily loaded' indictmentâ€], both state and federal Rules of Professional Conduct direct prosecutors to “not institute charges if [they] know that they are not supported by probable cause.†Here, the evidence presented to the grand jury may have legally supported probable cause for a charge of sex trafficking; it did not, however, provide for thirteen of the same (nor did trial evidence). . . .(ECF No. 8-1 at 57-59) (emphasis deleted).
The state appellate court denied relief on this claim, finding and concluding:
Wooten claims Counts 1 through 13, all convictions for sex trafficking, were all for a single offense despite acknowledging that each count alleged an offense committed at different times. There was no error. In closing argument, Wooten's attorney explained to the jury the distinction between the dates and that the jury must find that Wooten's “conduct was
present on that day for that act[.] ...” Additionally, in the jury instructions, the superior court specifically instructed, “[the jury] must decide each count separately on the evidence with the law applicable to it, uninfluenced by your decision on any other count.”
.. The acts supporting Counts 1 through 13 were separate and distinct from one another, and Wooten's attorney properly explained to the jury that separate acts had to be found to convict Wooten on the respective counts. Wooten's convictions and sentences were separate and distinct, and, accordingly, Wooten's convictions and sentences for Counts 1 through 13 did not constitute multiplicitous sentences.Wooten, 2018 WL 1870562, at *2.
The Arizona Court of Appeals' decision was not clearly contrary to nor an unreasonable application of federal law. A defendant's right to be free of double jeopardy is violated when a defendant is punished twice for the “same” crime. Missouri v. Hunter, 459 U.S. 359, 366 (1983); Green v. Ohio, 455 U.S. 976, 978 (1982). The Double Jeopardy Clause does not preclude convictions for separate criminal acts simply because they occurred during the same transaction or course of conduct. See, e.g., Eckert v. Tansy, 936 F.2d 444, 450 (9th Cir. 1991); Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987). See also Rhoden v. Rowland, 10 F.3d 1457, 1462 (9th Cir. 1993) (finding it “well settled that a single transaction can give rise to distinctive offenses under separate statutes without violating the Double Jeopardy Clause”). The state appellate court reasonably concluded Wooten's double jeopardy rights were not violated because Wooten had committed multiple “acts” of sex trafficking and the jury by its verdict understood that each count of the indictment alleged a specific act and, therefore, Wooten was not being punished twice for the “same” crime. See, e.g., Qualls v. Goldsmith, 178 Fed.Appx. 767, 771 (9th Cir. 2006) (“The jury was instructed that each count was a separate and distinct offense.” . we presume that the jury found separate acts to satisfy each count.”).
IV. Conclusion
Wooten procedurally defaulted some of his federal habeas claims in the state courts and he fails to establish cause for or prejudice arising from his procedural default of these claims. Wooten does not establish his actual, factual innocence and, accordingly, the Court may not grant federal habeas relief on the basis of any of his defaulted claims. With regard to the claims that were properly exhausted, the state courts' denial of relief on these claims was not clearly contrary to nor an unreasonable application of federal law. Accordingly, IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Wooten seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.