Opinion
CV-22-08048-PCT-JAT (JZB)
01-10-2023
Daniel Newton Head, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Daniel Head has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
On August 11, 2017, Petitioner was convicted of two counts of child prostitution. (Doc. 8-1 at 669-711; doc. 1-15 at 9.) Petitioner asserts he was deprived of his Sixth Amendment right to effective assistance of counsel because his counsel did not call character witnesses to testify at trial. (Doc. 1-2 at 10-11.) Because Petitioner is not entitled to relief on this claim, the Court recommends his habeas petition be denied and dismissed with prejudice.
II. Background.
A. Facts.
The Arizona Court of Appeals summarized the facts and procedural history as follows:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012).
As part of an undercover sting operation, police officers posted several online advertisements for prostitution. Head responded to one of these advertisements by phone and spoke with an undercover detective who was posing as a prostituted child. Early in their conversation, the detective told Head that she and her “friend,” another detective who was referenced in the advertisement, were only sixteen years old. With apparent surprise, Head questioned whether the “girls” were really age sixteen, and then stated, “that['s] kind of young.” Nonetheless, Head agreed to meet the “girls” at a Prescott hotel and pay them $250 for one hour of sexual activity.
Within minutes of ending his initial call, Head phoned the detective again and cancelled the meeting, explaining the “girls” were simply too young. After the detective responded that she did not want Head to feel uncomfortable, he inquired whether she would be willing to meet him in his hometown, Flagstaff. Declining the invitation, the detective explained that she only felt comfortable meeting Head at her location. Unable to persuade the “girls” to drive to Flagstaff, Head stated that he would still meet them in Prescott, as previously arranged, but explained he only wanted to talk.
A few hours later, Head arrived at the Prescott hotel. At the outset, he asked the detectives whether they were law enforcement officers, which they denied. He then stated that he enjoyed sex and would pay them $250 for one hour. Once he placed the money on the table, Head asked the detectives to remove their clothing. At that point, officers entered from the adjoining hotel room and placed Head under arrest.
The state charged Head with two counts of child prostitution. At trial, Head admitted that he had solicited prostitution, but testified he “didn't know what to believe” with respect to the prostitutes' ages, so he drove to Prescott to verify that the prostitutes were indeed minors. Claiming he believed the “girls” were adult prostitutes once he saw the detectives in person, Head explained that he thought they were simply role-playing a child-sex fantasy.
After a three-day trial, a jury found Head guilty as charged, and the superior court sentenced him to mitigated, consecutive terms of seven years imprisonment.
(Doc. 1-6 at 3-4.)
B. Direct Appeal.
On March 7, 2018, Petitioner filed a direct appeal. (Doc. 1-4.) On September 25, 2018, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 1-6.) On December 19, 2018, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 1-7 at 1-18.) On June 7, 2019, the Arizona Supreme Court denied review. (Id. at 19.)
C. Post-Conviction Relief Proceeding.
On November 5, 2019, Petitioner filed a petition for post-conviction relief (“PCR”). (Doc. 1-8.) The PCR court denied relief. (Doc. 1-10 at 3.) Petitioner filed a motion for rehearing. (Docs. 1-11, 1-12, 1-13.) On June 10, 2020, the PCR court denied the motion. (Doc. 1-14.)
On July 9, 2020, Petitioner filed a petition for review with the Arizona Court of Appeals. (Doc. 1-15.) The Arizona Court of Appeals granted review and denied relief. (Doc. 1-17.)
Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 1-18 at 121.) On April 28, 2021, the Arizona Supreme Court denied review. (Doc. 1-19.)
III. Analysis.
On March 25, 2022, Petitioner filed the instant Petition. (Doc. 1.) Petitioner raises one ground for relief, that his counsel provided ineffective assistance of counsel. (Id. at 6.) On June 17, 2022, Respondents filed an answer. (Doc. 8.) On July 18, 2022, Petitioner filed a reply. (Doc. 9.)
A. Standard of Review.
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). This Court may not grant habeas relief for any claim a state court adjudicated on its merits unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
To show the state court unreasonably applied federal law, the petitioner must show the state court decision was “more than incorrect or erroneous.” Locker v. Andrade, 538 U.S. 63, 75 (2003) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). “The state court's application of clearly established law must be objectively unreasonable.” Id. (citing Williams, 529 U.S. at 409). A petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2001).
This Court reviews the last reasoned state-court decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021). A federal court reviewing a habeas petition “should ‘look through' an unexplained decision to the last related state-court decision that does provide relevant rationale.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
B. Ineffective Assistance of Counsel.
To succeed on a claim of ineffective assistance of counsel, Petitioner must show: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) “the deficient performance prejudiced the [petitioner's] defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). If a petitioner fails to establish one of Strickland's two prongs, the Court need not address the other. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998) (“We have previously held that it is unnecessary to consider the prejudice prong of Strickland if the petitioner cannot even establish incompetence under the first prong.” (citation omitted)).
“[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (citation omitted). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
On habeas review, the petitioner carries the burden of showing “the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodfordv. Visciotti, 537 U.S. 19, 25 (2002). “When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). Habeas review of the ineffective assistance of counsel claims is subject to double deference because the court must give “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”); Murray v. Schriro, 882 F.3d 778, 826 (9th Cir. 2018) (noting “the double deference applicable to AEDPA claims of ineffective assistance of counsel”).
C. Petitioner Has Not Shown the PCR Court Unreasonably Applied Strickland .
Petitioner argues he was deprived of his Sixth Amendment right to effective assistance of counsel because trial counsel failed to interview or call character witnesses to testify at trial. (Doc. 1-2 at 10-11.) In response to this argument in his PCR petition, the PCR court denied Petitioner's Sixth Amendment claim and determined trial counsel reasonably decided against interviewing the witnesses because presenting character evidence was not necessary to the defense.
Because the Arizona Supreme Court summarily affirmed, the Court reviews the PCR Court's decision as the last reasoned state court decision. See Wilson, 138 S.Ct. at 1192.
Trial counsel's defense theory was that Petitioner sought an arrangement with adult prostitutes, not children. Counsel argued that upon meeting the undercover officers in the hotel room -- who were in fact ages 22 and 29 -- Petitioner knew they were not underage. (Doc. 8-1 at 732-33; doc. 2-1 at 9). The defense also argued that although the women claimed to be 16-year-old girls, Petitioner thought the women were carrying out a child sex fantasy. (Doc. 1-6 at 3-4.)
In contrast, Petitioner now argues trial counsel should have also presented a defense that Petitioner sought to help prostituted children. (Doc. 1-2 at 10-11.) Petitioner argues he had dual motives in meeting the women: to pay adult women for sex or to rescue underage girls from prostitution, depending on what ages the individuals appeared to be upon meeting face-to-face. (Id.) He contends trial counsel should have presented character evidence to support his theory. (Id.)
Petitioner asserts that before trial, he gave trial counsel a sampling of character letters and a list of witnesses who would testify to his character trait for helping others. (Id. at 11, 18.) Trial counsel reviewed those letters, used the letters for settlement negotiations and attached those letters to a settlement memorandum filed in court, but did not interview the witnesses or call the witnesses to testify at trial. (Doc. 1-2 at 11, 18; Doc. 1-10 at 2.) Counsel chose to file character letters at sentencing. (Doc. 8-1 at 130-37.) Petitioner argues trial counsel was ineffective in failing to interview the witnesses. (Doc. 1-2 at 10-11.) He cites letters attached to his PCR petition from the proposed character witnesses. (Id. at 2023.) The letters asserted Petitioner is not the type of person to harm underage girls and described Petitioner's affinity for helping others, including that Petitioner checked on his neighbors, supported his siblings and parents, and pursued a career in helping disabled people. (Doc. 8-1 at 103-06, 109, 115, 118-19).
It was not unreasonable that trial counsel chose not to present Petitioner's defense theory. Petitioner's suggested motives are inconsistent, and trial counsel acted reasonably in presenting the more persuasive theory. Trial counsel concluded that emphasizing Petitioner's intention to rescue children would undermine Petitioner's credibility because it was not believable. (Doc. 8-1 at 726-27, 730-32.) Audio recordings of Petitioner's initial phone call illustrate that after the undercover officers told Petitioner both were 16-year-old girls, Petitioner told the undercover officers that he “liked younger girls,” and initially agreed to pay for an appointment. (Doc. 8-1 at 486.) Petitioner called back to cancel the appointment stating the girls were under the age of consent and he did not want to “get busted by the police.” (Id.) Petitioner then arranged to meet in person, agreeing to pay for half an hour. (Id. at 487.) Video and audio recordings of the hotel room show Petitioner asked the women if either were police officers, which the officers denied. (Id. at 532.) The officers then asked Petitioner if he was with law enforcement. (Id.) After Petitioner said he was not, one officer responded she was glad because she “did not want to go to juvi,” and the other responded she would “get in trouble with [her] mom.” (Id. at 496, 532.) At one point, an officer referred to herself as “ 16, young, and spunky.” (Id. at 533.) Petitioner then paid the officers for the appointment and asked them to “get naked.” (Id.) It was not unreasonable for trial counsel to conclude a jury would not believe Petitioner's suggested motive of rescuing prostituted children.
Under these circumstances, Petitioner has not shown the PCR court unreasonably applied Strickland, or other United States Supreme Court precedent, in determining that trial counsel's performance was not deficient. The PCR court noted defense counsel “has a duty to make a ‘reasonable investigation' or a ‘reasonable decision' that makes a particular investigation unnecessary.” (Doc. 1-10 at 3 (citing Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir. 2003) (quoting Strickland, 466 U.S. at 688)).) The court concluded “trial counsel conferred with other attorneys in the office about this issue, reviewed the character letters well in advance of trial, and talked to Defendant about the letters and witnesses, the Court finds that trial counsel made a ‘reasonable investigation' as required by the law.” (Id.)
As cited by the PCR court, under Strickland, counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S at 691. Whether a trial counsel's investigation decisions are reasonable “depends critically” on “information supplied [to counsel] by the defendant.” Id. “[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.” Id.
After Petitioner told trial counsel that he intended to help the potentially underage girls and had a list of witnesses who would testify about his altruistic character (doc. 1-2 at 11), trial counsel had enough information without interviewing the witnesses to conclude such information would be irrelevant and possibly harmful to his defense. See, id.; LaGrandv. Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998) (finding no ineffective assistance where trial counsel did not interview three witnesses but knew the substance of the witnesses' testimony). See also Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986) (stating trial counsel does not need to interview a witness if the witness's account is fairly known to counsel). Trial counsel's decisions were the result of reasonable trial strategy and not, as Petitioner suggests, legal error about the irrelevance or inadmissibility of character evidence generally. (See Doc. 1 at 12-13.) The PCR court thus did not unreasonably apply Strickland or other United States Supreme Court precedent in denying Petitioner's ineffective assistance of counsel claim. See Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009) (holding habeas petitioner did not show his counsel was ineffective for declining to call additional character witnesses where it was not evident the testimony would have been material and non-cumulative).
Petitioner has likewise not shown the PCR court unreasonably determined the facts. See Burt, 571 U.S. at 15 (noting the Court affords both the state court and the defense attorney the benefit of the doubt). Petitioner argues the PCR court in concluding that “trial counsel reviewed the character letters” mistook the character letters provided to counsel before trial in 2014 for the letters prepared for sentencing in 2017. (Doc. 1-2 at 19.) The former purportedly spoke only to Petitioner's good character generally, where the latter included Petitioner's life-long proclivity to help others. (Id.; Doc. 8-1 at 130-37.) Nothing in the PCR court's decision suggests the court made such a mistake of fact. Indeed, at the PCR hearing, Petitioner's counsel argued the 2014 letters were not as specific as the letters prepared for sentencing and were not sufficient to inform counsel's decision not to present character evidence at trial. (Doc. 8-1 at 758.) There is no evidence the PCR court overlooked this distinction when it noted that trial counsel reviewed the character letters before trial.
Accordingly, Petitioner has not shown the PCR court unreasonably applied federal law or unreasonably determined the facts, and Petitioner is thus not entitled to federal habeas relief on his ineffective assistance of counsel claim.
IV. Conclusion.
The Court concludes Petitioner is not entitled to habeas relief on his ineffective assistance of counsel claim. The Court will therefore recommend that the Petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) 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 the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely 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 to timely 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.