Opinion
CV-20-02099-PHX-JAT (MTM)
07-20-2021
Jordan Lane Hidde, Petitioner, v. David Shinn[1], et al., Respondents.
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
Petitioner Jordan Lane Hidde has filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1; see also Doc. 7). Petitioner also filed a Motion for Summary Judgment. (Doc. 14).
Petitioner filed a motion to expand the arguments raised in his habeas petition, stating that he “did not realize it was also the time to advance arguments.” (Doc. 7 at 1). The Court granted this motion (doc. 8) and therefore considers the arguments of both the habeas petition (doc. 1) and the motion (doc. 7).
I. SUMMARY OF CONCLUSION
Petitioner was convicted in Pinal County Superior Court (CR-201402657) after a jury trial on two counts of aggravated assault and was sentenced to concurrent presumptive prison terms of 7.5 years. Petitioner argues that his due process rights were violated when the police mishandled evidence, and that both trial and appellate counsel were ineffective. Petitioner is not entitled to relief because the three grounds raised in the Petition are either unexhausted, procedurally defaulted, or without merit. The Court recommends that the Petition be denied and dismissed with prejudice, and that Petitioner's motion for summary judgment be denied as moot.
II. BACKGROUND
A. Conviction & Sentencing.
The Arizona Court of Appeals summarized the facts as follows:
The Court presumes the state court's recounting of the facts is correct. 28 U.S.C. § 2254(e)(1).
In October 2014, around 11:00 p.m., Hidde drove to the desert for solitary target shooting. Shortly after he arrived, three teenagers, K.K., J.C., and D.M., approached in two pickup trucks on their way to go “off-roading.” As the pick-ups passed by Hidde's parked car, he flashed his headlights and made a “peace sign.” Hidde then shined a laser light on J.C.'s truck as he and his passenger, D.M., drove away. J.C. saw the laser and drove back, stopping close to Hidde, who was standing on the side of the road with his car between him and J.C.'s truck. Upon being asked about the laser, Hidde told J.C. to leave, pointed an AR-15 rifle with a mounted laser sight at J.C., and began to count down from five. As J.C. began to drive away, Hidde opened fire. One bullet struck the side of the front bumper of J.C.'s truck, while another passed through the tailgate and entered D.M.'s arm. J.C. drove directly to the hospital and called 9-1-1 to report the incident on the way.
Meanwhile, Hidde got into his vehicle and sped away, driving to his home. He too called 9-1-1, and falsely reported that a pistol of his had been stolen earlier in the day at a convenience store. A police officer responded to his residence within minutes and found him smelling of alcohol and freshly shaven. Hidde admitted he had been drinking.
At the scene of the shooting, police found the pistol Hidde claimed had been stolen as well as a trail of motor oil leading all the way to Hidde's driveway. Later that night, a search of J.C.'s truck revealed a pellet gun lodged under the passenger seat, which was photographed but not collected for evidence.
Hidde did not mention the encounter with J.C. and D.M. to the 9-1-1 operator or the responding officer, but when police returned and confronted him, he admitted shooting at J.C.'s vehicle. He then mentioned he had two drinks earlier that evening before he went target shooting and claimed he had fired in response to his perception of danger when he saw the passenger
“reaching down for something.” Hidde said he feared the passenger was reaching for a gun but admitted he did not see what the passenger was reaching for or know whether there was a gun in J.C.'s truck. He stated his fear was compounded by J.C.'s “hostile” tone, the bright lights on K.K.'s truck, his being “outnumbered, ” and his vehicle being turned off. Hidde claimed he shined the laser as an attempt to call J.C. back to tell him he was target shooting but admitted he had “fully load[ed his] weapons” in preparation for the encounter. He also admitted he had shaved his goatee after he returned home in an attempt to change his appearance.
J.C. and D.M. both denied that they had threatened or intimidated Hidde and denied that D.M. had reached for anything. They also denied that D.M. knew there was a pellet gun in J.C.'s vehicle. No testimony suggested that Hidde and the victims had ever met before their encounter that night.
The jury found Hidde guilty of two counts of aggravated assault, and the judge sentenced him [to concurrent terms of 7.5 years].State v. Hidde, No. 2 CA-CR 2015-0417, 2016 WL 7010852, at *1-2 (Ariz.Ct.App. Dec. 1, 2016) (“Hidde I”).
See Doc. 9-1, Ex. C, at 64-67 (Arizona Court of Appeals' decision).
B. Direct Appeal.
Petitioner asserted that the trial court erred by: (1) denying a Willits instructionregarding fingerprint and DNA evidence not obtained from a pellet gun found in J.C.'s truck and (2) admitting evidence of alcohol and prescription pain medication use around the time of the incident. (Doc. 9-1, Ex. A, at 3-26). The Arizona Court of Appeals affirmed Petitioner's convictions on December 1, 2016. (Doc. 9-1, Ex. C at 64-67). The Arizona Supreme Court denied review, and the Court of Appeals issued its mandate on October 17, 2017. (Doc. 9-1, Ex. D, at 69).
A “Willits instruction” instructs the jury that it may infer fraudulent intent from the spoilation or destruction of certain evidence by the state. See State v. Willits, 393 P.2d 274, 279 (Ariz. 1964). “To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice.” State v. Glissendorf, 329 P.3d 1049, 1052 (Ariz. 2014) (quotation marks and citations omitted).
C. Post-Conviction Relief (“PCR”).
On December 10, 2018, Petitioner filed a pro se PCR petition asserting that his trial counsel and appellate counsel had been ineffective. (Doc. 9-1, Ex. F, at 77-118). On April 17, 2019, the PCR court summarily dismissed the PCR petition, finding that:
[A]ll matters contained in the Petition for Post-Conviction Relief are precluded as having been previously ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings[.](Doc. 9-1, Ex. H, at 139).
On May 6, 2019 Petitioner filed a petition for review in the Arizona Court of Appeals, asserting that: (1) his “trial and appellate counsel were ineffective in not recognizing clear ‘bad faith' by the police through the intentional non-preservation of potentially exculpatory evidence, in violation of his due process rights under A.R.S. Const. Art. 2, § 4; (2) appellate counsel was ineffective for not raising a claim of cumulative prosecutorial misconduct and thereby “deprived [him] of his opportunity to directly appeal violations of his Constitutional rights”; and (3) “trial counsel was ineffective … when he discussed jury instructions with the court and counsel outside [his] presence when waiving a limiting instruction offered by the trial Court to mitigate the prosecution's improper cross-examination.” (Doc. 9-1, Ex. I, at 144.) On October 21, 2019, the Arizona Court of Appeals granted review but denied relief, finding no abuse of discretion by the PCR court. State v. Hidde, No. 2 CA-CR 2019-0109-PR, 2019 WL 5304561 (Ariz.Ct.App. Oct. 21, 2019) (“Hidde II”). Petitioner did not seek review by the Arizona Supreme Court; the Court of Appeals issued its mandate on December 4, 2019. (Doc. 9-1, Ex. M, at 225).
See Doc. 9-1, Ex. L, at 221-23 for a copy of the Arizona Court of Appeals' decision reviewing Petitioner's PCR claims.
III. PETITION FOR WRIT OF HABEAS CORPUS
As summarized by the Court in its November 12, 2020 Service Order:
Petitioner raises three grounds for relief. In Ground One, petitioner alleges that his due process rights were violated when police mishandled evidence. In Grounds Two and Three, Petitioner alleges that his appellate (Ground Two) and trial counsel (Ground Three) provided ineffective assistance.(Doc. 3 at 1). Respondents asserted that the petition should be dismissed because its claims are either unexhausted, procedurally defaulted, and without merit (doc. 9); Petitioner filed his Reply on January 19, 2021 (doc. 12).
IV. LEGAL STANDARDS
A. Cognizability.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); Engle v. Isaac, 456 U.S. 107, 119 (1982) (“A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held ‘in custody in violation of the Constitution or laws or treaties of the United States.'”). Errors of state law are not cognizable in habeas proceedings. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (quotation marks and citations omitted); Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).
B. Exhaustion.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation marks and citations omitted); see 28 U.S.C. § 2254(b)(1). “[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996); see Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). Claims of Arizona state prisoners not sentenced to life imprisonment or death are exhausted once the Arizona Court of Appeals has ruled on them in a direct appeal or post-conviction relief proceeding. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (“[E]xcept in habeas petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.”).
C. Procedural Default.
“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed.” Id. “[A]n implied procedural bar” may exist “when a 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). “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (citing Stewart v. Smith, 536 U.S. 856, 859-60 (2002)); see Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.”).
A petitioner is not entitled to habeas review of a procedurally defaulted claim unless the petitioner “demonstrate[s] either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
The fundamental miscarriage of justice “exception is limited to those who are actually innocent.” Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). To demonstrate actual innocence, a petitioner “must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent” by showing that “it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (quotation marks and citations omitted).
Rule 32 of the Arizona Rules of Criminal Procedure governs post-conviction relief proceedings for defendants convicted at trial. A defendant seeking post-conviction relief on a constitutional claim pursuant to Ariz. R. Crim. P. 32.1(a) is precluded from raising claims “waived at trial or on appeal, or in any previous post-conviction proceeding[.]” Ariz. R. Crim. P. 32.2(a)(3). A claim is waived if “the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding, ” Stewart v. Smith 46 P.3d 1067, 1070 (Ariz. 2002), or where the defendant raised it but “cite[d] no relevant authority and d[id] not develop the argument in any meaningful way, ” State v. Stefanovich, 302 P.3d 679, 683 (Ariz.Ct.App. 2013). However, a failure to adequately raise a claim does not constitute waiver if the “claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance between two new rules: Rule 32 (applying to defendants convicted at trial) and Rule 33 (applying to defendants who pled guilty or no contest). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/RecentAmendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings that were initiated on or after January 1, 2020 or that were pending on January 1, 2020 except where “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 467 P.3d 1120, 1122 n.1 (Ariz.Ct.App. 2020); McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020); Demaree v. Sanders, No. CV-17-00294-TUC-EJM, 2020 WL 2084582, at *2 n.4 (D. Ariz. Apr. 30, 2020). Any successive PCR filings by Petitioner would therefore be governed by the new rules.
The Arizona Supreme Court has recognized a defendant's right to counsel and right to a jury trial as examples of “fundamental” constitutional rights that can only be waived knowingly, voluntarily, and personally by the defendant. Stewart, 46 P.3d at 1070-71.
V. ANALYSIS
A. Ground One: Mishandling of Evidence by Police.
Petitioner is not entitled to relief on Ground One because it is unexhausted and procedurally defaulted. Petitioner argues that his Fourteenth Amendment due process rights were violated when Detective Schmitz made “no effort” to preserve or perform any forensic analysis on a pellet gun found under the passenger seat of J.C.'s truck; Petitioner alleged that D.M. brandished the pellet gun to him. (Doc. 1 at 5; see Doc. 7 at 2-6). Petitioner asserts that a forensic showing that D.M. handled the gun during the incident would have supported his self-defense defense claim. (Doc. 7 at 2-3).
Ground One was not fairly presented to the Arizona Court of Appeals on direct appeal. On direct appeal, Petitioner challenged the trial court's denial of a Willits instruction “to cure the State's failure to preserve the weapon found in the accusers' vehicle.” (Doc. 9-1, Ex. A, at 15). Petitioner argued that the denial of a Willits instruction constituted a “state and federal Due Process violation” (id. at 21-22) and cited the Fifth, Sixth, and Fourteenth Amendments. (Id. at 17). However, Petitioner did not cite or analyze any federal law or proffer any theory to support his assertion of a federal due process violation. Rather, Petitioner cited and discussed Arizona law as it pertained to whether he was entitled to a Willits instruction under Arizona law (see Id. at 15-22).
The denial of a Willits instruction on state law grounds is not cognizable in habeas review. Hadnot v. Ryan, No. CV-15-08160-PCT-PGR (BSB), 2016 WL 1658842 at *5 (D. Ariz. Feb. 23, 2016) (“Because the Willits instruction is based on state law, when the state court rules that a defendant is not entitled to a Willits instruction as a matter of state law, that decision is not reviewable in a federal habeas proceeding.”), adopted by 2016 WL 1644056 (D. Ariz. Apr. 26, 2016); see also Swarthout, 562 U.S. at 219 (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“[A petitioner] may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.”). On this record, it is evident that Petitioner did not fairly present a federal due process claim in Ground One of his direct appeal. 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.”); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (“‘[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.'”) (quoting Gray, 518 U.S. at 163).
Similarly, Petitioner did not fairly present his federal due process claim to the Arizona Court of Appeals during his PCR proceeding. (See Doc. 9-1, Ex. I, at 149-55). Before this Court, Petitioner argues that the police violated Petitioner's due process rights by failing to preserve relevant evidence. (Doc. 1 at 5; Doc. 7 at 2-6). In his state court petition for review however, Petitioner argued that his “trial and appellate counsel were ineffective in not recognizing clear ‘bad faith' of police's conscious and intentional non-preservation of potentially exculpatory evidence, which could have been subjected to forensic testing.” (Doc. 9-1, Ex. I at 144, 149). Although Petitioner cited to applicable federal law in support of this claim (id. at 152 (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)), the claim was not fairly presented because it was not a distinct claim; it was merely asserted as an issue underlying his ineffective assistance of counsel claims. See Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005). In Rose, the Ninth Circuit held that a petitioner's due process claim was not fairly presented because the petitioner “merely discussed it as one of several issues which were handled ineffectively by his trial and appellate counsel.” Id. The court noted that “[w]hile admittedly related, [the underlying due process claim and the ineffective assistance of counsel claim] are distinct claims with separate elements of proof, and each claim should have been separately and specifically presented to the state courts.” Id. (emphasis added).
In Youngblood, the Supreme Court held that failure by law enforcement “to preserve potentially useful evidence” constitutes a due process violation when a defendant shows that law enforcement acted in bad faith. 488 U.S. at 58.
As in Rose, Petitioner here did not “separately and specifically” present his federal due process claim in his petition for review; rather, he presented it as an issue ineffectively handled by his trial and appellate counsel. (See Id. at 149-55). Accordingly, the federal due process claim of Ground One was not fairly presented to the Arizona Court of Appeals during Petitioner's PCR proceeding. See Id. Accordingly, because Petitioner did not fairly present his federal due process claim to the Arizona Court of Appeals in his direct appeal or PCR petition for review, it is unexhausted and consequently barred from this Court's review. See Baldwin, 541 U.S. at 29; Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38.
Moreover, the federal due process claim of Ground One is precluded under Ariz. R. Crim. P. 32.2(a)(3) because Petitioner did not raise the claim at trial, on direct appeal, or during his PCR proceeding and he does not show that the claim implicates a fundamental constitutional right that can only be waived knowingly, voluntarily, and personally by him. See Stewart, 46 P.3d at 1070. Consequently, Ground One is procedurally defaulted and barred from this Court's review because a return to state court to litigate it would be futile. See Robinson, 595 F.3d at 1100; Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987.
Petitioner fails to show adequate cause and resulting prejudice for his procedural default or that a fundamental miscarriage of justice will result if the claim is not reviewed. See Coleman, 501 U.S. at 750. In his Reply, Petitioner maintains that he did raise the federal due process claim before the Arizona Court of Appeals. (Doc. 12 at 5). Petitioner is not correct - the claim is unexhausted because it was not fairly presented to the Arizona Court of Appeals as a distinct, federal claim.
Petitioner asserts that he never received a copy of the Arizona Court of Appeals' decision denying his PCR petition for review. (Id. at 4). However, that is immaterial to whether he fairly presented his claims in the petition for review. In addition, Petitioner argues that preclusion under Ariz. R. Crim. P. 32.2(a)(3) does not apply because “fundamental error has occurred.” (Id. at 6). However, as discussed above, Petitioner has not alleged a violation of any fundamental constitutional right requiring a knowing, voluntary, and personal waiver by him. As such, preclusion applies because he did not raise his claim at trial, on direct appeal, or in his PCR petition. See Ariz. R. Crim. P. 32.2(a)(3); Stewart, 46 P.3d at 1070. Therefore, Ground One is procedurally defaulted without adequate excuse.
Accordingly, Petitioner is not entitled to habeas relief on Ground One.
B. Ground Two: Ineffective Assistance of Appellate Counsel.
Petitioner argues that his counsel on direct appeal was ineffective under the Sixth Amendment for failing to raise three specific claims of prosecutorial misconduct. (Doc. 1 at 7; Doc. 7 at 7-16). Petitioner raised these claims before the Arizona Court of Appeals on PCR review and therefore exhausted them. (See Doc. 9-1, Ex. I, at 144, 155-63). The Arizona Court of Appeals held that Petitioner “ha[d] identified no conduct that supports a claim of misconduct and, thus, ha[d] identified no reason for appellate counsel to have raised such a claim.” (Doc. 9-1, Ex. L, at 222). As explained below, the Arizona Court of Appeals' adjudication of these claims was not unreasonable, and Petitioner is not entitled to habeas relief.
To obtain habeas relief, a petitioner must show that the state court's adjudication of the claim: (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2554(d); see Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“The petitioner carries the burden of proof.”).
The term unreasonable refers not to ordinary error or even to circumstances where the petitioner offers a strong case for relief, but rather to extreme malfunctions in the state criminal justice system. In other words, a federal court may intrude on a State's sovereign power to punish offenders only when a decision was so lacking in justification beyond any possibility for fair minded disagreement.Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (internal quotation, alterations, and citations omitted). The clearly established federal law governing ineffective assistance of counsel (“IAC”) claims is Strickland v. Washington, 466 U.S. 668, 685 (1984). Under Strickland, a petitioner must show: (1) “that counsel's representation fell below an objective standard of reasonableness” and (2) “that the deficient performance prejudiced the defense, ” i.e., “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 687-90, 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 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 (quotation marks and citation omitted). “[I]t is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
To prevail on a claim of ineffective assistance of appellate counsel, Petitioner must show both that appellate counsel's performance was objectively unreasonable, and that, but for appellate counsel's failure to raise the claim before the appellate court, Petitioner would have prevailed in his appeal. Hurles v. Ryan, 188 F.Supp.3d 907, 921 (D. Ariz. 2016). The Ninth Circuit has recognized that these two conditions “partially overlap” as “[a]ppellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason-because she declined to raise a weak issue.” Id. at 922, quoting Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
1. “False and Misleading” Testimony Regarding Ammunition.
First, Petitioner argues that his appellate counsel was ineffective for failing to argue that the prosecutor “elicited false and misleading testimony” regarding the type and lawfulness of the ammunition he used in the incident. (Doc. 7 at 7-9; see also Doc. 9-1, Ex. I, at 157-59 [argument on PCR review]). An unspecified state witness had testified that the ammunition was “‘military grade ammunition that[ was] not readily available for just normal folks.'” (Doc. 7 at 8). Petitioner asserts that this testimony impermissibly “appeal[ed] to the fears and passions of the jury” and “ultimately undermined [his] affirmative defense/justification.” (Id.). The Arizona Court of Appeals rejected this claim because Petitioner did not present any evidence “suggesting the witness's testimony was false or misleading.” (Doc. 9-1, Ex. L, at 222, ¶ 8). The Court also noted that there was no misconduct by the prosecutor and “no reason for appellate counsel to have raised such a claim.” (Id. at ¶ 9).
The Arizona Court of Appeals noted that “[a]lthough Hidde invites us to conduct a ‘simple google search' which would show the ammunition is ‘widely available,' we will not consider evidence not properly before us.” (Doc. 9-1, Ex. L, at 222). Here, Petitioner provides an image of the ammunition he was purportedly using. (Doc. 12 at 26-28). However, because this evidence was not presented to the Arizona Court of Appeals, the Court does not consider it. See Pinholster, 563 U.S. at 181 (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”).
Petitioner is not entitled to habeas relief on this claim because he fails to show prejudice under Strickland. The Court need not reach the question of whether Petitioner's counsel rendered ineffective assistance on appeal, because Petitioner has not demonstrated that, assuming Petitioner's counsel's performance fell below an objective standard of reasonableness, counsel's performance affected the outcome of the appellate proceeding. See Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”); Gallegos v. Ryan, 820 F.3d 1013, 1027 (9th Cir. 2016). Specifically, Petitioner fails to show that he would have prevailed at the Arizona Court of Appeals had counsel raised the present ammunition argument.
Considering the evidence at trial, Petitioner has not shown a reasonable likelihood that the Arizona Court of Appeals would have found error compelling reversal had appellate counsel presented the ammunition argument. Petitioner was convicted on two counts of aggravated assault under A.R.S. § 13-1204, which provides in pertinent part that “[a] person commits aggravated assault if the person commits assault as prescribed by § 13-1203 . . . us[ing] a deadly weapon or dangerous instrument.” A.R.S. § 13-1204(A)(2). A person commits assault under A.R.S. § 13-1203 by “intentionally, knowingly or recklessly causing any physical injury to another person” or by “intentionally placing another person in reasonable apprehension of imminent physical injury.” A.R.S. § 1203(A)(1)-(2). A “deadly weapon” is “anything designed for lethal use, including a firearm.” A.R.S. § 13-105(15). The facts at trial, discussed Section II(A), supra, established that Petitioner fired a firearm (an AR-15 rifle) at the victims as they drove away and injured one of them.
Petitioner fails to show that presenting the ammunition argument at the Arizona Court of Appeals would have resulted in a reversal of his conviction, because the strength of the evidence at trial was strong as to the necessary elements of the offense, and because Petitioner has not shown that testimony about the availability or legality of the ammunition used would have so inflamed the jury that he could not possibly have received a fair trial. Considering the evidence presented at trial, Petitioner has not shown a reasonable probability that, but for the alleged failure of appellate counsel, he would have prevailed at the Arizona Court of Appeals. Petitioner is not entitled to relief on this IAC claim.
2. “Prejudicial” Testimony Regarding Alcohol and Medication Use.
Second, Petitioner argues that appellate counsel was ineffective for failing to argue that the prosecutor elicited “a highly prejudicial and unsubstantiated suggestion that [he] was under the influence of alcohol and prescription painkillers during the incident” when the prosecutor asked his father, who served as his character witness, if it was a “good idea” to go shooting while under the influence of alcohol and prescription pain killers. (Doc. 7 at 9-11; see also Doc. 9-1, Ex. I, at 162-63). Petitioner states that the trial court sustained his counsel's objection to the testimony in question, but that the questioning nonetheless “undermined [his] constitutional right to a fair trial.” (Id. at 10-11).
Petitioner is not entitled to habeas relief on this claim because he fails to establish counsel was ineffective. Contrary to Petitioner's assertion, his appellate counsel did in fact argue that the trial court should have excluded testimony regarding Petitioner's alcohol and prescription medication use. (See Doc. 9-1, Ex. A, at 7, 22-25 [argument on direct appeal]; Doc. 9-1, Ex. C, at 66 [“Hidde next contends the trial court erred when it denied his motion to exclude evidence of his use of alcohol and prescription pain medication.”]). The Arizona Court of Appeals concluded that “the trial court did not abuse its discretion in finding evidence of Hidde's use of alcohol or drugs relevant to the jury's construction of what actually happened, in light of the conflicting testimony.” (Id.). Because Petitioner argues only that counsel failed to raise the issue at all, and because the record clearly shows counsel did raise this argument, the instant claim for relief is meritless.
3. Cross-Examination of Character Witness.
Third, Petitioner argues that appellate counsel was ineffective for failing to argue that the prosecutor improperly cross-examined his father when the prosecutor asked him if he was aware of a past altercation Petitioner had with a former employer that had been documented in a police report. (Doc. 7 at 11-12, 14 [police report]; see also Doc. 9-1, Ex I, at 159-61 [argument on PCR review]). Petitioner states that his counsel objected to the testimony in question, but the trial court overruled it. (Doc. 7 at 12). Petitioner further asserts that this questioning violated his rights under the Sixth Amendment Confrontation Clause because the police officer who authored the police report was not available for cross-examination and because the contact information of the victim named in the police report had not been disclosed until the “‘eve of trial.'” (Id.).
The Arizona Court of Appeals “d[id] not address” Petitioner's claim that the police report documenting the aforementioned altercation was not disclosed to him in violation of state disclosure rules and Brady v. Maryland, 373 U.S. 83 (1963) because Petitioner had failed to “develop this argument in any meaningful way” and therefore waived it. (Doc. 9-1, Ex. L, at 222 (citing Stefanovich, 302 P.3d at 683 (holding that a claim is waived where the defendant “cite[d] no relevant authority and d[id] not develop the argument in any meaningful way”))). As such, the claim is procedurally defaulted and consequently unreviewable by this Court. See Martinez, 566 U.S. at 9.
Petitioner is not entitled to review of the claim because Petitioner fails to allege adequate cause and resulting prejudice for the default or that a fundamental miscarriage of justice will result if the claim is not reviewed. See Coleman, 501 U.S. at 750. The Arizona Court of Appeals held that the questioning at issue was permissible under Ariz. R. Evid. 405(a), “which allows ‘an inquiry into relevant specific instances of the person's conduct' during cross-examination of a character witness.” (Doc. 9-1, Ex. L, at 222). As such, appellate counsel was not ineffective for failing to raise an allegation of error for conduct that is expressly permitted under the applicable rules. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.”) (citing Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)). Moreover, the Arizona Court of Appeals' ruling is not inconsistent with clearly established federal law. As explained by the Supreme Court:
The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.
***
Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one's arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.Michelson v. United States, 335 U.S. 469, 479 (1948); see United States v. Bush, 58 F.3d 482, 488-89 (9th Cir. 1995) (“A witness who has endorsed the character of the defendant may be cross-examined about whether he's heard about prior bad acts of the defendant.”) (citing Michelson, 335 U.S. at 479); cf. Fed. R. Evid. 405(a).
Accordingly, Petitioner is not entitled to habeas relief on any of the IAC claims asserted in Ground Two.
C. Ground Three: Ineffective Assistance of Trial Counsel.
Petitioner is not entitled to relief on Ground Three because it raises claims that are either procedurally defaulted or without merit. In Ground Three, Petitioner argues that his “trial counsel was ineffective and in breach of [his] autonomy when” counsel “waiv[ed]” a “‘curative' instruction and select[ed] the wrong jury instruction outside of [his] presence.” (Doc. 1 at 8). Petitioner argues that a “self-defense” jury instruction had therefore not been selected despite his “entire case revolv[ing] around” a self-defense justification. (Id.). Specifically, Petitioner argues that an instruction on A.R.S. § 13-405 (justifying use of deadly physical force in self-defense) was “wrongly offered and/or selected” instead of an instruction on A.R.S. § 13-404 (justifying use of plain physical force in self-defense). (Doc. 7 at 17-19).
The Arizona Court of Appeals rejected Petitioner's claim on procedural grounds for his failure to “cite[] [any] authority suggesting an attorney cannot waive a defendant's presence for such discussions, or that it falls below prevailing professional norms to do so.” (Doc. 9-1, Ex. L, at 222 (citing Stefanovich, 302 P.3d at 683 (holding that a claim is waived where the defendant “cite[d] no relevant authority and d[id] not develop the argument in any meaningful way”))). Because the court of appeals, applying Stefanovich, found the claim waived and rejected it on procedural grounds, the claim is procedurally defaulted and consequently unreviewable by this Court. See Martinez, 566 U.S. at 9., Petitioner is not entitled to review of this claim before this Court because Petitioner fails to allege cause and resulting prejudice for the default or that a fundamental miscarriage of justice will result if the claim is not reviewed. See Coleman, 501 U.S. at 750.
The Arizona Court of Appeals rejected Petitioner's claim that his trial counsel was ineffective for waiving a limiting instruction, stating that “whether to decline a limiting instruction is a tactical decision to be made by counsel” and therefore “cannot support a claim of ineffective assistance absent an allegation that the decision could have had no reasoned basis, which Hidde has not made.” (Id.). Petitioner fails to demonstrate that the court of appeals' resolution of this claim was an unreasonable application of clearly established federal law as he does not cite or discuss any federal authority that contradicts the court of appeals' conclusions, either in his petition or motion to expand. (See Doc. 1 at 8-9; Doc. 7 at 17-20). See Pinholster, 563 U.S. at 181; Woodford, 537 U.S. at 25. To the contrary, the Arizona Court of Appeals' conclusions are entirely consistent with applicable federal law. See Smith v. Stewart, 77 F. App'x. 925, 926 (9th Cir. 2003) (“Defense counsel has leeway to make strategic decisions at trial and ‘need not request instructions inconsistent with its trial theory.'”) (quoting Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985)). Moreover, even if counsel had no reasoned basis for waiving a limiting instruction, Petitioner fails to demonstrate that this decision prejudiced him as he does not provide the text of any proposed limiting instruction. Petitioner merely attaches an excerpt from a transcript where “a limiting instruction” was mentioned by the trial court, but nothing further as to the specifics of the instruction. (Doc. 7 at 22).
The Arizona Court of Appeals was never properly presented with Petitioner's claim that his trial counsel was ineffective for selecting a jury instruction on A.R.S. § 13-405 (justifying use of deadly physical force in self-defense) instead of A.R.S. § 13-404 (justifying use of plain physical force in self-defense) (doc. 7 at 17-19); as such, the claim is unexhausted. It is procedurally defaulted because Petitioner could not return to state court to raise the argument; Ariz. R. Crim. P. 32.2(a)(3) prohibits raising in any successive PCR petition a claim that could have been raised in the first PCR petition, and Arizona's procedural rules constitute an adequate and independent ground to foreclose federal review. See Robinson, 595 F.3d at 1100; Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987. Accordingly, Petitioner is not entitled to habeas relief on Ground Three.
VI. CONCLUSION
The record is sufficiently developed; thus, the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). For the foregoing reasons, Petitioner is not entitled to habeas relief. Accordingly, the Court recommends that Petitioner's habeas petition (doc. 1) be denied and dismissed with prejudice and that Petitioner's motion for summary judgment (doc. 14) be denied as moot.
VII. CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. full. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.
IT IS THEREFORE RECOMMENDED THAT:
(1) Petitioner's Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
(2) A Certificate of Appealability be denied.
(3) Petitioner's Motion for Summary Judgment (doc. 14) be denied as moot.
(4) Petitioner's Motion for Additional Pleadings (doc. 13) be denied as moot.
(5) David Shinn, Director of the Arizona Department of Corrections, be substituted as a party in place of Defendant Unknown Wrigley.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely 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 file timely objections to any factual determinations of the Magistrate Judge may 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 Fed. R. Civ. P. 72.