Opinion
No. CV 15-001157 PHX SRB (CDB)
02-20-2020
Charity Marie Hill, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN R. BOLTON:
Petitioner Charity Hill, proceeding pro se and in forma pauperis, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 22, 2015. (ECF No. 1; ECF No. 5). The matter was stayed pending the outcome of Hill's state court proceedings. (ECF No. 11; ECF No. 17). The stay was lifted June 28, 2019, and Respondents answered the petition for habeas corpus relief on September 11, 2019. (ECF No. 31; ECF No. 35). Hill notified the Court on November 15, 2019, that she would not file a reply to the answer to her petition. (ECF No. 36).
I Background
A. Factual background
The following factual background is taken from the presentence report, which relied in part on Phoenix Police Departmental Report #2005-51687620:
Seventeen-year-old Jacob Hendricks was found dead, with a zip tie around his neck and his legs tied to the bed with a dog leash, inside an apartment on September 4, 2005. [J.T.] and [E.T.] were asleep in another room when the murder occurred, but they reportedly never awoke during the incident. Officials later determined that asphyxiation due to ligature strangulation caused the victim's death, and during his autopsy, the examiner also observed that he had sustained bruises to at least two of his ribs.
Investigation revealed that the defendant [Charity Marie Hill], Juan Armenta and Daniel Eason killed the victim because he allegedly prostituted one of their female friends, [M.S.], to satisfy a $60.00 drug debt. The defendant apparently discussed her participation in the murder with an associate, [J.V.], after she appeared at his apartment looking dazed and frightened, and she reportedly told him that she had to "finish off" the victim because Daniel Eason was unable to do so.
The defendant later denied these remarks and asserted that [J.V.] was untruthful because she refused to engage in sexual intercourse with him. She reportedly had no prior knowledge of the codefendants' intentions when she accompanied them to the apartment, but after they arrived, she complied with Mr. Eason's instructions to close a bedroom door to ensure that [J.T.] and [E.T.] would not awaken. The defendant reportedly observed Mr. Eason kiss the victim's forehead and comment that he regretted his actions before he placed the zip tie around the victim's neck. Mr. Armenta reportedly stood by until the victim awoke and began struggling, whereupon he assisted Mr. Eason to hold the victim down. According to the defendant, the victim struggled intensely, and at one point asked for his mother, during the approximate twenty minutes that it took him to die. The defendant initially denied that she participated in the murder but later admitted that she grasped the victim's arm as he reached for Mr. Armenta's gun because she was fearful someone would be harmed.
During questioning, the defendant voiced a number of comments regarding the victim. She initially described him as a punk who deserved what occurred but subsequently suggested that a beating would have been a sufficient sanction. The defendant contended that she did not intervene for fear that the codefendants would harm her, and she stated that Mr. Eason threatened her after the murder occurred.
***
According to Mr. Eason, he broke into the apartment through a window, and subsequently let the defendant and Mr. Armenta in through the front door. He initially stated that a fight ensued, during which Mr. Armenta attempted to control the victim, who was kicked in the ribs by the defendant. However, Mr. Eason subsequently reported that the victim was
asleep when they arrived, and the defendant tightened a zip tie around his neck before he awoke, and he helped to restrain the victim as he struggled.(ECF No. 35-1 at 200-01).
During a subsequent conversation with an associate of Mr. Eason, investigators were informed that he acknowledged choking the victim with the zip tie, but he contended that the defendant finished the deed after he became tired.
Juan Armenta stated that all three of them were upset about the victim's alleged treatment of [M.S.]. He stated that Mr. Eason strangled the victim with the zip tie while he and the defendant waited outside of the apartment. . . .
When interviewed, [M.S.] stated that the three defendants had been in her company in a nearby apartment prior to the murder. . . . [M.S.] reportedly overheard the defendant questioning the codefendants if [M.S.] could handle accompanying them, but Mr. Armenta commented that it was "over her head." The three subsequently left for approximately twenty minutes, and after they returned, Mr. Eason told her that they had murdered the victim. [M.S.] explained that Mr. Eason admitted that he choked the victim, who pleaded for his life, with a zip tie that the defendant handed him, and they broke his ribs during their efforts to subdue him. According to [M.S.], it was very obvious to her that the defendant understood what was to occur when she left in the company of the codefendants, and when the three returned, none of them appeared anxious or upset.
A police report dated September 19, 2005, indicates Mr. Eason confessed he was the person who placed "the zip tie around" the victim's neck." (ECF No. 8-1 at 49).
B. State court proceedings
A grand jury indictment returned September 16, 2005, charged Hill and two co-defendants with first-degree murder or, alternatively, felony murder (kidnapping and burglary) (Count 1). (ECF No. 8-1 at 2-3). The indictment also charged all three defendants with one count of kidnapping (Count 2) and one count of first-degree burglary (Count 3). (ECF No. 8-1 at 3-4). Hill entered into a plea agreement on April 11, 2006, agreeing to plead guilty to one count of second-degree murder in exchange for the dismissal of the charges of kidnapping and burglary. (ECF No. 8-1 at 7-9). The plea agreement noted the presumptive sentence of 16 years' imprisonment and the maximum sentence of 22 years' imprisonment, and that she would be sentenced to a consecutive term of community supervision. (ECF No. 8-1 at 7). The plea agreement further noted Hill would not be eligible for release from prison on any basis until her entire sentence was served. (Id.). The plea agreement also provided that the parties had not reached any agreement as to sentencing, stating: " No agreements as to sentencing. " (Id.) (emphasis in original).
In Hill's state post-conviction action the State maintained: "The indictment charged all the relevant statutes for accomplice liability." (ECF No. 8-1 at 52).
At a plea hearing conducted April 14, 2006, Hill avowed she had read, understood, and voluntarily signed the plea agreement, that she had discussed the entire plea agreement with her counsel, Mr. Craig, and that she was satisfied by counsel's answers to her questions regarding the plea agreement. (ECF No. 35-1 at 210-12). Hill was informed of the range of sentencing she faced pursuant to the entry of a guilty plea; she told the court she understood she could be sentenced to a maximum of 22 years' imprisonment and stated she understood the other "ramifications" of entering a guilty plea, including that she would be sentenced to a term of community supervision. (ECF No. 35-1 at 212-14). Hill was advised:
. . . the agreement that you have reached with the State of Arizona . . . says that there are no agreements as to sentencing, and what that means is they are leaving it up to the Court to decide where in that range [of] 10-22 years you should be sentenced. Do you understand that?(ECF No. 35-1 at 214). Hill responded: "Yes." (Id.). The transcript of the plea hearing includes the following colloquy:
THE COURT: Now, did your counsel or anyone else threaten you or intimidate you in some way to get you to enter into this plea agreement?
THE DEFENDANT: No.
THE COURT: Have you entered into this plea agreement on your own volition, meaning voluntarily?
THE DEFENDANT: Yes.
THE COURT: Did anybody promise you anything that's not contained in writing in Paragraph 2 on page one of the plea agreement?
THE DEFENDANT: No.
THE COURT: In exchange for your signature on the plea agreement addendum . . . did anybody promise you anything other than what's contained in Paragraph 2 on page one of the agreement itself?
THE DEFENDANT: No.(ECF No. 35-1 at 215-16).
Hill was advised of the constitutional rights she was waiving by pleading guilty, and told the court she understood she was waiving these rights, including her right to have "a jury as opposed to a judge [] determine any aggravating factors that could increase [her] sentence beyond the presumptive of 16 years." (ECF No. 35-1 at 217-18). The judge emphasized Hill's waiver of this last right and, after Hill responded "Yes" to the judge's question as to whether she understood she was waiving her right to a jury determine any aggravating factors, the judge stated:
That's one of the things that you are giving up by having this open range between 10 and 22 years. If you went to trial, it would be required to have the jury determine if there are any aggravating factors that could increase your sentence beyond 16 years. Instead, you leave that up to the Judge.(ECF No. 35-1 at 218). Hill again stated: "Yes." (Id.). The judge then asked: "Again, anybody force you or threaten you in any way to get you to plead guilty?" and Hill replied: "No." (ECF No. 35-1 at 219).
Hill then pled guilty to the charge of second-degree murder. (Id.). Her counsel subsequently recited the factual basis for her guilty plea:
. . . on September 4, 2005, Ms. Hill committed murder in the second degree when, without premeditation and knowing that her conduct would cause the death of another, she helped cause the death of Jacob Hendricks. Specifically . . . on that date she and an individual Daniel Eason . . . went to [an address in Phoenix]. . . . While they were at that location, Mr. Eason asked Ms. Hill if she would place a zip-tie around the victim's neck. The tie was, in fact, placed around the victim's neck. When it was tied, it caused the death of Mr. Hendricks. That would be the factual basis.(ECF No. 35-1 at 219-20). The court asked Hill: "Did you, in fact, commit this crime?" and she responded: "Yes." (ECF No. 35-1 at 221). The state trial court then concluded Hill had "knowingly, intelligently and voluntarily entered a plea of guilty to the charge of Count I, as amended, second degree murder . . ." (ECF No. 35-1 at 222).
At some point after the entry of her guilty plea and before sentencing Hill moved to withdraw from the plea agreement, an evidentiary hearing was conducted, and the motion was denied. (ECF No. 35-1 at 235-36). On May 14, 2010, four years after entering her guilty plea and after a sentencing hearing, Hill was sentenced to an aggravated term of 19 years' imprisonment. (ECF No. 8-1 at 14-17). The delay between the time of the plea agreement and Hill's sentencing was due to her involvement in the prosecution of "other matters." (ECF No. 35-1 at 82 n.1).
In her plea agreement Hill agreed to testify in the criminal case against Marjorie Orbin; Hill and Orbin shared a jail cell in September and October of 2005. Ms. Orbin's trial occurred over nine months in 2009. (ECF No. 35-1 at 221). See also Appellant's Brief, State v. Orbin, 2011 WL 882646, at *8, 16, 25-26 (Ariz. Ct. App. Feb. 7, 2011).
At Hill's sentencing the prosecutor told the court:
. . . she agreed to testify in State versus Orbin as well. That was something that was also part of the plea.(ECF No. 35-1 at 244). Hill's sentencing counsel, Ms. Gray, argued that the prosecutor was not representing these facts entirely accurately. (ECF No. 35-1 at 252-54). Hill's co-defendant, Mr. Eason, pled guilty on October 23, 2009, and co-defendant Mr. Armenta pled guilty on March 16, 2010. (ECF No. 8-2 at 107).
. . . She was called as a witness on the Orbin case. . . . but she took the stand, and she said that those statements that she'd previously made were not true. The State's position, my position is that she lied under oath. And now I'm forced into a position to try and negotiate pleas with respect to the other two co-Defendants, because I believe her credibility has plummeted.
At the sentencing hearing the State asked the court to impose a sentence of 20 years' imprisonment, noting the crime was "an extremely brutal murder of a 17-year-old," and that although Hill "didn't play the major role in what occurred . . . she did assist." (ECF No. 35-1 at 239). The prosecutor noted that in her first police interview, when describing the victim's struggle for his life, Hill said: "Hell yeah, I think he knew he was going to die once they were fighting with him. I think we all kinda knew that's what was going to happen." (ECF No. 35-1 at 240). He further noted Hill told the detective the victim "[p]ut up a fight for at least a good 15, 20 minutes," and that she knew "he was thinking about his mom, because he said he wanted his mom." (ECF No. 35-1 at 241). The prosecutor also opined: "I believe she has minimized her involvement in what took place," (ECF No. 35-1 at 240), and reiterated: "I don't believe she was the major participant in what went on. That certainly was Mr. Eason, but she did participate." (ECF No. 35-1 at 242).
At Hill's sentencing the court asked for information regarding the level of Hill's participation in the murder and whether her statements minimizing her role in the murder were truthful. The presentence report states: "According to [Hill], the codefendants' associates, [M.S.] and [J.V.], provided untruthful information to law enforcement officers, and she asserts that [M.S.] has threatened her about discussing the crime since her incarceration." (ECF No. 35-1 at 202). The sentencing court queried whether Hill's co-defendants had "threatened to keep her there, threatened her to have her participate, et cetera," which "seem[ed] at odds with what [the court had] known about the case from the beginning . . ." (ECF No. 35-1 at 246). In response the prosecutor noted the conflicting statements from Hill and from Hill's co-defendants, and summarized: ". . . are there indications [of threats]? There are indications here, and so what we've got to do is we've got to wed through the information that's out there and see what appears to be credible based on her prior statements." (ECF No. 35-1 at 247). He then stated:
The probation officer recommended that Hill be given a greater than presumptive sentence. (ECF No. 35-1 at 205).
. . . I believe she was being truthful with respect to the information she was providing to Detective Barnes about this case . . . in terms of the detailed account of what happened to this youngster.
. . . She had to be a participant. She even admits being a participant in her first interview in her second interview. She minimizes . . . what her involvement is, but she does also reflect that she did participate.
. . . when you look at what she did and then what she did afterwards -- you know -- she didn't go to the police or turn . . . either of these two fellas in. And, granted, she indicates that she was afraid to do that. Instead, she hooked up with Mr. Armenta about two days later, and they were out on the lam for another two or three days before they were both arrested together . . .
. . . Yes, there are some indications, based upon some of the things she says and based upon some of the circumstances that are being described.
Is it my position that those are accurate? No.
Is it my position that she went up there knowing full well what was going on? Probably not. They went up there with the intent to mess up this young man and teach him a lesson. And once it started, she also, too, became involved. So that's the State's position.(ECF No. 35-1 at 247-49).
Hill's counsel, Ms. Gray, then argued that Hill should receive a mitigated sentence asserting, inter alia, her youth, her difficult childhood, her lack of a criminal record, her family ties, her efforts at rehabilitation while in jail, her cooperation with the prosecution against her co-defendants and Ms. Orbison, her remorse, and her methamphetamine addiction. (ECF No. 35-1 at 250-56). With regard to Hill's honesty regarding her participation in the murder, Ms. Gray stated: "[The prosecutor] thinks that she's minimized her involvement; but, Judge, she's told it like it is exactly what happened, as brutal as it was." (ECF No. 35-1 at 252). Ms. Gray also stated: "Charity was high the entire time this happened," (ECF No. 35-1 at 255), which the prosecutor contradicted with Hill's statement to the detective that on the night in question "there was no drugs for us to get high on," although she and her co-defendants had been seeking drugs that night. (ECF No. 35-1 at 269-70). Several of Hill's family members and a mitigation specialist also spoke on her behalf at her sentencing hearing. (ECF No. 35-1 at 258-68).
In imposing an aggravated sentence the court found
. . . problematic and troubling by way of aggravation that the victim was a friend of the Defendant's. That's all sort of more of that whole sort of pile of how could you really do this to this person? It's one thing when people hurt strangers. It's another thing when they hurt someone that they know.(ECF No. 35-1 at 277). The court further stated:
The emotional harm to the victim's family is evident from everything the Court has been presented during both Mr. Eason's sentencing and in the information that the State has provided in connection with your sentencing as well.
. . . it was very clear from everything that everyone provided to the Court that's not disputed that there was definitely intent to do serious harm to the victim.
***
This isn't the kind of scenario where someone in a fit of anger shoots somebody with a gun and the harm is done and it's over.(ECF No. 35-1 at 275-76). At the conclusion of the hearing the court sentenced Hill to a term of 19 years' imprisonment, more than the presumptive sentence but less than the maximum sentence allowed by the plea agreement. (ECF No. 35-1 at 278). The court further ordered, pursuant to state law, that Hill serve a term of community supervision upon her release from prison. (ECF No. 35-1 at 279).
This attack lasted for a number of minutes, and -- you know -- during that time when anybody is in the position that the victim was in, it's just unimaginable to probably all of us in the courtroom what he must have been thinking and feeling. The fear -- never mind the physical pain, the fear, knowing that he was going to die or knowing that it was likely that he was going to die, is something the Court certainly views as an aggravating circumstance.
***
And this one, where the victim was 17 years old and suffered for as long as he did, knowing what was happening, struggling and trying to prevent it, in the Court's view, absolutely all of those circumstances are in aggravation.
Hill sought relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (ECF No. 8-1 at 19-21). She was appointed counsel, who notified the court that she was "unable to find a tenable issue" to raise on Hill's behalf. (ECF No. 8-1 at 23-24). Hill filed a pro se Rule 32 petition, asserting she was denied the effective assistance of trial and sentencing counsel; a Blakely claim; that her guilty plea was not voluntary because she was under duress; and that newly acquired evidence ameliorated her role in the offense of conviction. (ECF No. 8-1 at 27-38).
Hill alleged her sentencing counsel "was not qualified by the Arizona State Bar for Murder 1, and Murder 2 cases during the time she was assigned to my case, which hindered her during all parts of this case." (ECF No. 8-1 at 35). She asserted her trial counsel, Mr. Craig,
. . . lied to [her about the plea agreement], stating I would only receive a 10 year sentence. He and the prosecutor had spoken and made it a verbal agreement . . . and [counsel] stated to me [i]t did not matter if I'm not the one who killed him, that he could not prove it and that this plea was the best I could get. I believe [Mr. Craig] did not do his job in researching my case nor did he fully investigate all the crime [] evidence . . ."(Id.)
The state habeas trial court denied relief in an order entered October 11, 2012. (ECF No. 8-1 at 104-06). The court concluded Hill's ineffective assistance of counsel claims were without merit because she failed to demonstrate either deficient performance or prejudice. (ECF No. 8-1 at 105). The state court found the following facts:
Defendant's claim that her attorney Randall Craig lied to her and promised her that she would receive only a 10 year sentence is belied by the written plea agreement which states unambiguously in paragraph 2 that there were "no agreements as to sentencing." Likewise, Defendant engaged in an extensive colloquy with the Judge who took her change of plea, in which Defendant repeatedly acknowledged that she knew she could be sentenced to prison for between 10 and 22 years. . . . Defendant also told the Court that no one had made her any promises and she was not relying on any promises, other than what was contained in the written plea agreement.(Id.). The court determined, with regard to Hill's other claims:
Defendant's claim that she was threatened and felt under pressure is non-specific as to dates, time and content. She fails to explain how any threat, assuming one was made, affected her decision to enter the plea agreement. She further agreed as part of the plea agreement that she was entering the plea agreement voluntarily and that no one had forced or threatened her into doing so.(ECF No. 8-1 at 105-06).
Defendant also waived the right to have a jury find aggravators and she expressly agreed to the Court doing so . . .
Finally, Defendant fails to establish a newly discovered evidence claim. She has not satisfied any of the necessary elements for such a claim and her contention is without merit that the report of a co-defendant's statement in a police report makes her realize she may have had a different role in the murder. Defendant was present and participated in the murder of the victim. . . . Furthermore, regardless of how another participant might view Defendant's particular role in the murder, under accomplice liability, Defendant's culpability is unaffected.
Pursuant to Arizona law, one who intends to further or aid another's conduct, and is at least reckless about whether that conduct "showed 'extreme indifference to human life . . . [and] create[d] a grave risk of death,'" is guilty of second degree murder as an accomplice to the murder, regardless of whether they intended for the assailant to kill the victim. See State v. Garnica, 209 Ariz. 96, 101-02 (Ariz. Ct. App. 2004), cited in State v. Nelson, 214 Ariz. 196, 197-99 (Ariz. Ct. App. 2007).
Hill sought review of the trial court's denial of Rule 32 relief. (ECF No. 8-1 at 108-10). She reasserted her Blakely and ineffective assistance of counsel claims, and noted one of her co-defendants had received a shorter sentence although he had a prior conviction and that she received an aggravated sentence notwithstanding her cooperation with the prosecutor. (ECF No. 8-1 at 110). The Arizona Court of Appeals granted review but summarily denied relief. See State v. Hill, 2014 WL 1213389 (Ariz. Ct. App. Mar. 24, 2014). The appellate court stated:
Mr. Eason, who had prior convictions for theft, attempt to commit aggravated assault, unlawful flight, weapons misconduct, and armed robbery, pled guilty to all three counts of the indictment and received a stipulated sentence of natural life imprisonment. (ECF No. 35-1 at 235). Mr. Armenta, who had a prior conviction for possession of burglary tools, pled guilty to a reduced charge of manslaughter, and to kidnapping and burglary as charged, and was sentenced to concurrent terms of 16 years' imprisonment. (ECF No. 35-1 at 234-35). Mr. Armenta was released from prison to a term of community supervision on January 28, 2020.
On review, Hill repeats her claims that she received ineffective assistance of counsel and that the trial court committed Blakely error in sentencing her to an aggravated prison term. She abandons her remaining claims, and we therefore do not address them. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "[t]he reasons why the petition should be granted" and "specific references to the record"); State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review).Id. at *1. The Arizona Supreme Court denied a petition for review, in which Hill asserted her ineffective assistance of counsel claims, her Blakely claim, her allegation that she was under duress at the time of her plea, and her allegation of newly discovered evidence. (ECF No. 8-2 at 13-45, 50, 52).
As to her claims presented on review, the trial court clearly identified those claims and resolved them correctly in a thorough, well-reasoned minute entry, which we adopt. . . .
Hill filed a second Rule 32 petition on September 2, 2014, seeking the appointment of counsel and raising "new issues," including a claim of ineffective assistance of post-conviction counsel and denial of her right to allocute. (ECF No. 8-2 at 56-69). The state trial court dismissed the Rule 32 action as successive, also finding "[i]neffective assistance of post-conviction relief counsel is not a colorable claim. There is no Constitutional right to effective assistance of counsel in a state post-conviction relief proceeding." (ECF No. 8-2 at 72). Hill filed an appeal on October 23, 2014, presenting additional issues to the state appellate court. (ECF No. 8-2 at 74-100).
Hill filed the instant petition for federal habeas corpus relief on June 22, 2015. (ECF No. 1). The § 2254 action was stayed on October 16, 2015, pending the resolution of Hill's second Rule 32 action by the Arizona Court of Appeals. (ECF No. 11).
The Arizona Court of Appeals granted review but denied relief in Hill's second Rule 32 action on November 22, 2016, concluding:
Hill could have raised the claims of ineffective assistance of trial counsel and the sentencing issues in her petition for post-conviction relief of-right in 2012. She could have raised the claims of ineffective assistance of her of-right post-conviction relief counsel in a timely second petition for post-conviction relief. Any claim a defendant could have raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. Finally, we do not consider the issues Hill presents for review but did not raise below.State v. Hill, 2016 WL 6871422, at *1 (Ariz. Ct. App. Nov. 22, 2016). The Court of Appeals did note the trial court "was incorrect when it held there is no right to effective assistance of post-conviction relief counsel," stating this was a "cognizable claim for post-conviction relief when made against counsel who provided representation in an 'of-right' post-conviction relief proceeding." Id. at n.1.
The State of Arizona filed a Motion for Reconsideration and Request for Remand in the Arizona Court of Appeals. [] The State indicated it had "discovered that it erroneously argued that Hill's second PCR Notice was untimely when in fact it was timely filed" and "[t]he finding of untimeliness was made by the trial court and reiterated by [the appellate court] due to this error." [] Therefore, the State requested a remand of the case to the trial court because "Hill could properly raise the ineffective assistance of of-right PCR counsel in her second PCR proceeding and it was timely initiated." [] . . . On February 21, 2017, the court of appeals granted the State's motion for reconsideration. [] . . .
On remand, the trial court reinstated Hill's second PCR proceeding, and Hill raised three allegations of ineffectiveness against her of-right PCR counsel. [] The State responded to the allegations [], and Hill filed a Reply []. On December 30, 2018, the court dismissed Hill's second PCR
proceeding because she had failed to prove ineffectiveness under Strickland v. Washington, 466 U.S. 668 (1984).[](ECF No. 35 at 9-10) (internal citations to the record omitted).
Hill was appointed counsel in this (her third) post-conviction action and counsel notified the state court that they could find no meritorious claims of to raise on Hill's behalf. (ECF No. 35-1 at 38). In her pro se memorandum Hill asserted her first post-conviction counsel failed to identify fundamental errors regarding her sentence. (ECF No. 35-1 at 52). Hill asserts her post-conviction counsel should have argued: (1) she was denied her right to allocute; (2) the sentencing court improperly considered "ex parte evidence in aggravating her sentence;" and (3) she was improperly sentenced to a term of supervised release in violation of Arizona Revised Statutes § 13-710. (ECF No. 35-1 at 53; ECF No. 35-1 at 86). Hill also asserted "free standing" claims that she was not provided an opportunity to allocute at sentencing; the trial court improperly considered "ex parte evidence" at sentencing; and that she was improperly sentenced to a term of community supervision. (ECF No. 35-1 at 39, 44-59). The state habeas trial court found Hill's ineffective assistance of post-conviction counsel claims without merit, and also stated: "As to any and all other PCR claims Defendant has asserted herein, the court finds them to be without merit." (ECF No. 35-1 at 120). Hill did not seek review of this decision in the Arizona Court of Appeals, but instead filed a special action in the Arizona Supreme Court, which declined jurisdiction. (ECF No. 35-1 at 198).
C. Federal habeas claims
In her petition Hill asserts: (1) she was denied her right to the effective assistance of trial, sentencing, and post-conviction counsel; (2) she was sentenced to an aggravated term of imprisonment in violation of state law and Booth v. Maryland, 482 U.S. 496 (1987); (3) her guilty plea was not voluntary because she entered into the plea agreement as a result of duress stemming from post-traumatic stress disorder and threats on her life by her co-defendants while she was in the county jail; (4) after she was sentenced new evidence of her "minimal involvement" came to light; and (5) she was erroneously sentenced to community supervision, citing Arizona Revised Statutes §§ 13-701 and 13-710. (ECF No. 1 at 6-11, 15).
In her habeas petition Hill also argues she was denied her "fundamental right to allocution," in violation of the "Federal and State" constitutions and Rule 26.10(b)(1) of the Arizona Rules of Criminal Procedure. (ECF No. 1 at 12). Hill also alleges the sentencing court erred by aggravating her sentence "based on ex-parte evidence," citing Arizona Rule of Criminal Procedure 26.6. (ECF No. 1 at 13).
Hill raised these claims in her second Rule 32 action, and the state court found the claims procedurally defaulted. (ECF No. 8-2 at 71). Additionally, Hill has failed to state a cognizable § 2254 claim that her federal constitutional rights were violated by the "denial" of allocution, because she was provided the opportunity to allocute but instead chose to address the court through two letters. See Speirs v. Uttech, 2007 WL 1704269, at *1 (W.D. Wash. June 11, 2007), distinguishing Boardman v. Estelle, 957 F.2d 1523, 1530 (9th Cir. 1992) (limiting any federal due process right to allocution to "circumstances in which a defendant . . . makes a request that he be permitted to speak to the trial court before sentencing").
Rule 26.10(b)(1) of the Arizona Rules of Criminal Procedure provides the sentencing court must "give the defendant an opportunity to address the court" prior to imposing sentence. The record indicates Hill was given an opportunity to address the court. Moreover, a state court's alleged failure to comply with its own procedural rules does not violate the defendant's right to due process of law. See Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (holding "alleged errors in the application of state law are not cognizable in federal habeas corpus" proceedings).
Similarly, a defendant's right to due process is violated only if the sentencing court actually relied on any ex parte evidence in formulating the defendant's sentence. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998). The state habeas court that considered this allegation, in the context of Hill's claim of ineffective assistance of post-conviction counsel, determined the sentencing court did not rely on any ex parte evidence when sentencing Hill. (ECF No. 35-1 at 119). And, although the Arizona state courts do not "condone or encourage any ex parte discussion of sentencing by a trial judge prior to the imposition of sentence," this case is distinguishable from the cases wherein the state courts have disapproved of this behavior. See State v. Mincey, 141 Ariz. 425, 444 (Ariz. 1984) (finding informal conversation between judge and media and receipt of ex parte communications concerning sentencing did not require disqualification), distinguishing State v. Valencia, 124 Ariz. 139 (1979). See also State v. Callahan, 119 Ariz. 217, 221-22 (Ariz. Ct. App. 1978) (finding the trial judge made full disclosure of witness' letters received prior to sentencing and, because no prejudice was shown, disqualification was not necessary).
Hill does not ask the Court to vacate her conviction, but instead asks the Court "to remain in plea agreement" and have the aggravating "factors dismissed, and to be sentenced to 10 [calendar] years without [community] supervision, which is the minimum mitigated sentence" allowed "pursuant to ARS § 13-1104." (ECF No. 1 at 17).
Respondents allows Hill properly exhausted her first four claims for federal habeas relief; Hill's fourth claim is not cognizable in a federal habeas action; and that Hill procedurally defaulted her fifth claim in the state courts. (ECF No. 35 at 10-11).
II. Analysis
A. Standard of Review Regarding Properly Exhausted Claims
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 prisoner on a claim adjudicated on the merits in a 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.'" Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it contradicts the governing law established by United States Supreme Court, or if it reached a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). Furthermore, the state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. "'A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'" Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016), quoting Harrington, 562 U.S. at 101. See also Dixon v. Ryan, 932 F.3d 789, 801 (9th Cir. 2019).
B. Merits
1. Ineffective Assistance of Counsel
A. Pre-plea counsel
Hill contends her plea was not knowing and voluntary because her counsel, Mr. Craig, promised her she would receive a sentence of ten years' imprisonment and because he did not adequately investigate her minimal role in the offense. Hill raised this claim in her first Rule 32 action; the state trial court concluded the claim was without merit and the appellate court affirmed the denial of relief. The state court's denial of relief on this claim was not clearly contrary to nor an unreasonable application of federal law.
A pleading defendant "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel" was constitutionally deficient. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); accord Fairbanks v. Ayers, 650 F.3d 1243, 1254-55 (9th Cir. 2011) (holding a pleading petitioner's Strickland claim "must be limited to the contention that trial counsel was ineffective only in advising petitioner to plead guilty"). Ineffective assistance of counsel claims in cases involving a pleading defendant are governed by the doctrine of Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim the petitioner must establish that their counsel's performance fell below an objective standard of reasonableness and "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 690. It is the petitioner's burden to demonstrate both prongs of the Strickland test. Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). In the context of a case involving a guilty plea, the petitioner satisfies the "deficient performance" prong of the relevant test by establishing that the advice she received from counsel as to the terms and potential benefits of the plea agreement was constitutionally deficient. Hill, 474 U.S. at 56-57. See also Premo v. Moore, 562 U.S. 115, 126-27 (2011); Fairbanks v. Ayers, 650 F.3d 1243, 1254-55 (9th Cir. 2011).
[A] defendant has the right to make a reasonably informed decision whether to accept a plea offer. In McMann v. Richardson, the seminal decision on ineffectiveness of counsel in plea situations, the Court described the question as not whether "counsel's advice [was] right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 771 []. . . . to establish a claim of ineffective assistance, [the defendant] "must demonstrate gross error on the part of counsel. . . ." Id. at 772 [].Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (some internal citations and quotations omitted). "The Third Circuit has interpreted this standard as requiring a defendant to demonstrate that the advice he received was so incorrect and so insufficient that it undermined his ability to make an intelligent decision about whether to accept the plea offer." Id., citing United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992).
Additionally, in the context of a pleading defendant, the prejudice prong of the Strickland test is modified; the habeas petitioner must establish "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. The Court must assess the circumstances surrounding the case to determine if the petitioner's allegation that she would have proceeded to trial is plausible. See, e.g., Smith v. Mahoney, 611 F.3d 978, 990 (9th Cir. 2010) (finding no Strickland prejudice where the petitioner had "little to no chance of prevailing on an affirmative defense"); Weaver v. Palmateer, 455 F.3d 958, 970 (9th Cir. 2006) (finding no Strickland prejudice where the petitioner's proposed defense "would have been unlikely to succeed").
The state habeas trial court found Mr. Craig's performance was not deficient. Hill asserted in her state habeas action, as she does in this matter, that Mr. Craig was ineffective because he assured her she "would only get 10 years" if she signed the plea agreement. (ECF No. 1 at 6). The state court found implausible Hill's claim that she was promised a ten-year sentence, particularly given her signature on the written plea agreement providing otherwise and her statements at the plea hearing. The Arizona Court of Appeals affirmed this determination and denied Hill's claims that her counsel coerced her to enter the plea agreement, noting the transcript of the plea colloquy belied this claim. Findings of historical fact underlying a state court's conclusion that a guilty plea was knowing and voluntary are given deference by a federal habeas court. Lambert v. Blodgett, 393 F.3d 942, 976-77 (9th Cir. 2004). A state court's adverse credibility finding is entitled to deference unless the petitioner presents clear and convincing evidence to the contrary. See Sexton v. Cozner, 679 F.3d 1150, 1156-57 (9th Cir. 2012). Hill fails to provide the Court with any evidence that Mr. Craig did indeed promise her a ten-year sentence if she pled guilty, and her allegation is belied by Hill's signature on the plea agreement and her statements at the plea hearing.
Hill further alleges Mr. Craig told her "it didn't matter" that she was "not the one who killed" the victim "or that [Hill] tried to stop the murder from happening." (ECF No. 1 at 6). Hill also contends Mr. Craig told her the plea "was the best [she] could get," and asserts Mr. Craig failed to adequately investigate the facts regarding her role in the murder. (Id.). The record in this matter indicates there was more than adequate evidence to find Hill guilty under a theory of accomplice liability, including Hill's own inculpatory statements, those of her accomplices, and those of third parties to whom Hill and her accomplices admitted their participation in the murder. Accordingly, Hill fails to establish that Mr. Craig's advice, that "it didn't matter" that she was "not the one who killed" the victim, did not constitute "gross error" and his advice was "within the range of competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 771-72. The record is devoid of any evidence that Hill "tried to stop the murder from happening."
Where the alleged error is counsel's failure to investigate a potential defense, the salient inquiry is whether "discovery of the evidence would have led counsel to change his recommendation as to the plea." Hill, 474 U.S. at 59. In turn, the result of this inquiry may depend on whether "the [] defense would have likely succeeded at trial." Id. . . . Courts have generally rejected claims of ineffective assistance premised on a failure to investigate where the record demonstrates that the defendant would have pled guilty despite the additional evidence and where the additional evidence was unlikely to change the outcome at trial. See, e.g., Hill, 474 U.S. at 56 . . . Mitchell v. Scully, 746 F.2d 951, 955 (2d Cir. 1984) (per curiam) (finding no prejudice and guilty plea voluntary where counsel allegedly failed to inform defendant of affirmative defense that had little chance of success and entailed serious risks).Lambert, 393 F.3d at 982-83 (internal string citations omitted). Hill does not assert that, but for any error by Mr. Craig, she would not have pled guilty but instead would have insisted on going to trial, and the record indicates that, given her minimal but admitted role in the murder, the "best" plea deal Hill could receive was as an accomplice to second-degree murder.
Hill has not established that Mr. Craig's advice with regard to the plea agreement was deficient. Because the plea agreement was advantageous to Hill and there was substantial evidence of her guilt on the charge of second-degree murder by means of accomplice liability, including her own statements to law enforcement and those of her co-defendants, her counsel's performance was not deficient nor coercive for advising her to accept the plea agreement. See, e.g., Weaver, 455 F.3d at 967. A lawyer's advice to plead guilty in the face of strong inculpatory evidence does not constitute ineffective assistance of counsel. See Lambert, 393 F.3d at 984 (finding no Strickland prejudice from counsel's alleged failure to uncover evidence supporting the proposed defense prior to the entry of a guilty plea where there was "overwhelming evidence of guilt" and "little chance" that defense would have succeeded at trial); Sophanthavong v. Palmateer, 378 F.3d 859, 870-71 (9th Cir. 2004) (finding no Strickland prejudice where the petitioner's assertion that he would have rejected the plea offer and gone to trial had he been properly advised was not credible in light of the substantial evidence of his guilt and much higher potential sentence at trial). Therefore, Hill has not satisfied the first prong of the Strickland or Hill test which requires she show her counsel's advice with regard to the plea agreement and the consequences she faced as a result of entering a guilty plea was incorrect.
B. Sentencing counsel
Hill also contends Ms. Gray, her sentencing counsel, "missed 3 fundamental errors or more at sentencing. I am unfamiliar with legal language . . . she was not qualified or did not pass Bar when trying to make my arguments." (ECF No. 1 at 6, 10). Hill does not offer any specific argument Ms. Gray should have but failed to raise with regard to her sentencing, or how she was prejudiced by any alleged deficiency.
In her first Rule 32 action Hill asserted Ms. Gray provided unconstitutionally ineffective assistance of counsel. The state habeas trial court found counsel's performance was not "deficient or unreasonable under all the circumstances," and that there was no "reasonable probability that, but for her attorneys' alleged unprofessional errors, the result of the proceedings would have been different." (ECF No. 8-1 at 105). The state court further concluded: "Defendant fails to support her assertions that attorney [Ms.] Gray . . . was ineffective. Defendant's bare claims are insufficient." (ECF No. 8-1 at 105).
The state court's denial of relief on this claim was not clearly contrary to nor an unreasonable application of federal law. Judicial scrutiny of counsel's performance is highly deferential, and there is a "strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986), quoting Strickland, 466 U.S. at 689. Cursory allegations that are purely speculative cannot support a claim of ineffective assistance of counsel. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (finding petitioner's "cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief."); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (finding "conclusory suggestions that [petitioner's] trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation"); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). See also Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (holding a defendant cannot satisfy the Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense."). Furthermore, a thorough review of the transcript of the sentencing hearing reveals Ms. Gray's performance at sentencing was well within the range of professionally reasonable performance with regard to the mitigation produced by Ms. Gray and her argument on Hill's behalf. Accordingly, the state court's denial of this claim was not clearly contrary to nor an unreasonable application of Strickland.
C. Post-conviction counsel
Hill asserts her post-conviction counsel was ineffective. Hill contends her first Rule 32 counsel, Ms. Eaton, "did nothing for 17 months" after being appointed, and her second Rule 32 incorrectly found no colorable claims for relief. (ECF No. 1 at 11). Hill states that counsel failed to raise "'any and all colorable claims,'" although "there were at least 3 fundamental errors." (ECF No. 1 at 11). Hill asserts her post-conviction counsel was ineffective for failing to assert: (1) she was denied her right to allocute; (2) the sentencing court improperly relied on ex parte evidence in aggravating her sentence; (3) she was improperly sentenced to a term of community service.
In is unclear if a defendant has a federal constitutional right to the effective assistance of post-conviction counsel, other than in the context of asserting cause for their procedural default of an ineffective assistance of trial counsel claim. The AEDPA specifically precludes habeas claims based upon ineffectiveness of post-conviction counsel: "The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254(i). See also Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (discussing Martinez v. Ryan, 566 U.S. 1 (2012)). Arguably, the only cognizable claim of ineffective assistance of post-conviction counsel is when a pleading defendant asserts their post-conviction counsel failed to assert a claim that their trial counsel was, provably, unconstitutionally ineffective. See Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012); Newell v. Ryan, 2019 WL 1280960, at *3, *25 (D. Ariz. Mar. 20, 2019).
Hill raised her claim of ineffective assistance of post-conviction counsel in her third Rule 32 action, and the state trial court denied relief on the merits of the claim. Although Hill did not properly exhaust the claim by presenting it to the Arizona Court of Appeals in a procedurally correct manner, the claim may be denied on the merits. See 28 U.S.C. § 2254(b)(2). As the State reasoned in its responsive brief and the state habeas trial court found, none of Hill's assignments of error, i.e., the "3 fundamental errors" she asserts post-conviction counsel should have asserted, are meritorious. Counsel's performance is neither deficient nor prejudicial when counsel "fails" to raise a non-meritorious claim. See Juan H., 408 F.3d at 1273; Rupe, 93 F.3d at 1445; Lowry, 21 F.3d at 346.
With regard to the issue of allocution, as noted in the State's response in Hill's third Rule 32 action:
In Arizona, a defendant who has been found guilty of a crime has a right to speak on his or her own behalf prior to sentencing. See Ariz. R. Crim. P. 26.10(b)(1). However, the Arizona Supreme Court has held that a defense counsel may speak for his client in exercising the right of allocution because defense counsel "represents and stands in the stead of his client when addressing the court." State v. Davis, 112 Ariz. 140, 141 (1975); see also State v. Garrison, 25 Ariz. App. 470, 472 (1976) (holding that defendant was not denied the opportunity to speak on his own behalf before sentence was pronounced when his counsel was given an opportunity to speak). Even in death penalty cases where the court has
failed to invite the defendant to speak, it has been held that there is no need for resentencing unless the defendant can show that he would have added something to the mitigating evidence already presented if he had spoken prior to sentencing. State v. Anderson, 210 Ariz. 327, 350, ¶¶ 100-01, supplemented on other grounds, 211 Ariz. 59 (2005); State v. Hinchey, 181 Ariz. 307, 313 (1995).(ECF No. 35-1 at 91-92).
Here, the Court provided Hill the opportunity to speak before she was sentenced and her attorney answered on her behalf and presented letters that Hill had written. After the Court reviewed Hill's letters, the Court asked "is that everything?" and Hill's attorney stated that it was. Hill raised no objections and did not ask to personally speak; she simply let the sentencing proceed. Now she claims she had no opportunity to allocute. Hill's attorney spoke in her stead and on her behalf and under well-settled Arizona authority that satisfies the requirement that a defendant have an opportunity to speak. Even now, Hill does not contend that she would have presented the Court with anything not already offered if she had spoken personally. Since the trial court did not deny Hill the opportunity to allocute at sentencing, PCR counsel was not ineffective for failing to raise this issue in Hill's first PCR.
With regard to Hill's allegation regarding "ex parte" evidence, the State argued:
Hill argues that the Court relied on information it received at [Mr.] Eason's sentencing to aggravate her sentence. Hill states that she was not able to confront such evidence because she wasn't present at Eason's sentence and therefore asks "for the information Judge Mahoney considered in ex parte to be thrown out and not aloud [sic] to be used as an aggravating factor." (Successive Notice of Post-Conviction Relief, dated 9/2/14 at 6.)
Again, Hill is mistaken. While it is true that Judge Mahoney mentioned Eason's sentencing twice during Hill's sentencing, an honest review of the sentencing transcript reveals that she never relied on information garnered solely from Eason's sentencing to aggravate Hill's sentence. Hill claims that Judge Mahoney relied on information from Eason's sentencing to aggravate her sentence based on the Court's discussion of the "motivation" for the crime. However, it is clear from the sentencing transcript that the Judge heard the same information again during Hill's sentencing, in the Presentence Investigation in Hill's own case, and in the State's Sentencing Memorandum which was filed under seal.
***
When the Court discusses the motivation for the crime at sentencing, it is in the following context:
We have a single victim who's really ambushed, in the sense that he was asleep. He was unsuspecting. He didn't know what was coming, and then he's essentially attacked by three people, all together, with an intent as they go in there to mess him up Whatever "mess him up" means, whether that's kill him or something short of kill him, it was very clear from everything that everyone provides to the Court that's not disputed that there was definitely intent to do serious harm to the victim.
The motivation for it is troubling to the Court. I know I heard Mr. Eason talk about it. I saw here in the papers again, this really appears to be a murder in retaliation for what conduct people either believed Jake had engaged in or was going to engage in. But in any event, the motivation of retaliation is very disturbing to the Court. Because what it really does is it reflects more -- it shows more reflection about this ahead of time. This isn't the kind of scenario where someone in a fit of anger shoots somebody with a gun and the harm is done and it's over.
***
I know Mr. Barry has kind of characterized it as heinousness in terms of the crime itself. And, Ms. Gray, you've taken issue with that and indicated this isn't a capital crime. And you don't really know if that's an appropriate aggravator, but to me that fits under the great emotional harm to the victim because of the nature of -- you know -- there are murders, and there are murders.
***
Judge Mahoney did not need to rely on "ex parte evidence" from Eason's sentencing to find evidence about the motivation and nature of this crime. It was in the Presentence Investigation in Hill's case; it was in the State's Sentencing Memorandum in Hill's case; it was in Hill's own words read by the prosecutor at sentencing that, try as she might, she can never take back.
Hill also claims that the Court's finding of an aggravating factor of emotional harm to the victim's family should be set aside, again claiming that Judge Mahoney relied on "ex parte evidence" from Eason's sentencing to make this finding. Once again, Hill has ignored what the Court really said. Judge Mahoney told Hill, "[t]he emotional harm to the victim's family is evident from everything the Court has been presented during both Mr. Eason's sentencing and in the information that the State has provided in connection with your sentencing as well." (R.T. 5/14/10 at 51.)
It is clear from the Court's own words that Judge Mahoney received all the information she needed to find the aggravating factor of emotional harm to the victim's family from Hill's own sentencing.(ECF No. 35-1 at 94-96).
With regard to Hill's allegation that post-conviction counsel failed to assert she was improperly sentenced to a term of community supervision, the State argued:
The Court in this case imposed community supervision pursuant to A.R.S. § 13-603(I). That statute reads the same now as it did in 2005 at the time of Hill's crime: "If a person is convicted of a felony offense and the court sentences the person to a term of imprisonment, the court at the time of sentencing shall impose on the convicted person a term of community supervision." There is no exception for flat-time sentences.(ECF No. 35-1 at 97-99).
***
In [State v. Jenkins, 193 Ariz. 115 (Ariz. Ct. App. 1998)], like Hill, the defendant had pleaded guilty to second degree murder. He was sentenced to an aggravated term of twenty years and pursuant to A.R.S. § 13-603(I), the trial court also ordered him to serve one day for every seven days served under the supervision of the Community Supervision Program to be served consecutively to the actual period of imprisonment. 193 Ariz. at 117, ¶¶ 2-3. Like Hill, the defendant in Jenkins alleged that the trial court had illegally sentenced him to both a flat-time term of imprisonment and to community supervision. Id. at ¶ The Arizona Court of Appeals held that community supervision is mandated by A.R.S. § 13-603(I) even for flat-time sentences. . . .
In denying relief on these claims the state habeas court found Hill "failed to demonstrate" that her post-conviction counsel's performance was deficient and also failed to demonstrate any prejudice arising from counsel's alleged errors. (ECF No. 35-1 at 119). The court found Hill "chose to remain silent and rely upon her letters to the court and the rest of the voluminous sentencing materials submitted on her behalf." (Id.). The court further found the sentencing court (which was also the state habeas court) had considered all of the evidence submitted by the state, the victim's family, Hill herself, "etc." (Id.). The court specifically stated that the information it had heard from Mr. Eason "had been provided also 'here in [Defendant Hill's sentencing] papers again,'" and that these "materials were available to all parties in Defendant's sentencing, including Defendant Hill and her counsel." (Id.) (emphasis and alterations in original). The court further noted Arizona law required Hill receive a term of community supervision and that this was "expressly reflected" in the plea agreement, to which Hill expressly consented. (Id.).
As previously noted, counsel is not ineffective for failing to raise a non-meritorious claim, and Hill fails to establish that she was prejudiced by any of her post-conviction counsel's alleged errors, i.e., that she would have received a different sentence but for counsel's failure to raise these issues. Therefore, Hill is not entitled to relief on her allegation of the ineffective assistance of post-conviction counsel.
2. Blakely Claim
Hill contends she was sentenced to an aggravated term of imprisonment in violation of the terms of the plea agreement because the factors aggravating her sentence were found by a judge, i.e., a claim pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and because her sentence was aggravated based on the statements of the victim's family, citing state law and Booth v. Maryland, 482 U.S. 496 (1987). Hill raised this claim in her first Rule 32 action, and the state court denied relief, finding: "Defendant also waived the right to have a jury find aggravators and she expressly agreed to the Court doing so, all as is standard in a plea agreement." (ECF No. 8-1 at 105).
In Booth the Supreme Court held that introduction of a victim impact statement at the sentencing phase of capital murder trial violated the Eighth Amendment and that the relevant Maryland statute was invalid to the extent it required consideration of that information. Booth v. Maryland, 482 U.S. 496, 509 (1987). Booth is inapplicable as it was overruled by Payne v. Tennessee, 501 U.S. 808 (1991), in which the majority held that the Eighth Amendment did not erect a per se bar prohibiting a capital sentencing jury from considering victim impact evidence.
The state habeas court's conclusion was not clearly contrary to nor an unreasonable application of federal law. The Supreme Court held in Blakely that a defendant may waive the right to have a jury, as opposed to a trial judge, determine the existence of aggravating factors. 542 U.S. at 310. Specifically, the Court stated that:
Justice Breyer argues that Apprendi works to the detriment of criminal defendants who plead guilty by depriving them of the opportunity to argue sentencing factors to a judge. But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free is seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are secured, are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.Id. (citations omitted). See also Castle v. Schriro, 414 F. App'x 924, 928 n.5 (9th Cir. 2011) (concluding the defendant's "express waiver of his 'right to a determination by a jury of any fact used to impose a sentence within the sentencing range' are enforceable and effective. Blakely, 542 U.S. at 310."). See also Bird v. Brown, 338 F. App'x 573, 575 (9th Cir. 2009); White v. Ryan, 2010 WL 1416054, at *15 (D. Ariz. Mar. 16, 2010). Hill's statements to the trial court, that she understood the possible sentence she was facing and agreed to waive her right to have a jury determine aggravating circumstances, "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977) (holding defendants' statements at their plea hearings "carry a strong presumption of verity" and "constitute a formidable barrier" at later proceedings). Accordingly, the state court's denial of relief on Hill's claim that her sentence was improperly aggravated based on factors found by a judge rather than a jury was not clearly contrary to federal law. As explained more thoroughly supra, Hill's claim that her sentence violated state law is not cognizable.
3. Voluntariness of Guilty Plea
In Ground Three of her federal habeas petition Hill asserts: "Petitioner was under duress." (ECF No. 1 at 8). Hill vaguely asserts she was under duress both at the time of the murder and at the time she entered her guilty plea:
[Defendant] was under duress caused by being present at the crime. [Defendant] was unaware that the crime was going to happen and held against her will by [Mr.] Armenta. Petitioner suffered from PTSD due top the crime and was hearing voices after the crime which she received medication for while in county jail.
Both of Petitioner's codefendants had threatened her with death if she told anyone what happened. [Mr.] Eason [threatened multiple] people with death if they turned him in. [Mr.] Armenta [admitted] on the phone to his mother about having the Petitioner beat down by others in the county jail. [sic](ECF No. 1 at 8). In support of these allegations Hill attaches to her petition a police department report reviewing Hill's "jail calls" on September 13, 2005:
Charity is saying how she went [with] two guys and they killed a 17 year old by zip tieing him. She said she went with them, she was there and one of the guys had a gun.(ECF No. 1 at 26). The report states, with regard to a phone call on September 18, 2005:
***
Charity admits she knew they killed the kid. She talks about hoping to make bail so she can go back to California.
***
Talking now about how she was trying to get away from [Mr. Armenta] after the murder but he would not let her go. Her dad tells her to tell the police she was held hostage.
Talking to her mom how she did not [know] they were going to do it, she was just there.(ECF No. 1 at 26-27). The notation of a phone call on September 25, 2005, states: "Charity tells her mom she is now on psych medications that the jail is giving her and that she is hearing voices and only since she has been in jail." (ECF No. 1 at 27).
She tells her mom they zip tied "the motherfucker" and that the kid was a little punk and this is why they did it. Charity said they told her to go with them and she did. Talks about how she pulled [the roommates'] door shut and when she came back out they were doing it. Said one of them had a gun and that she was high and scared.
Hill raised the basic premise of her duress claim in her state Rule 32 action, and the trial court found:
Defendant's claim that she was threatened and felt under pressure is non-specific as to dates, time and content. She fails to explain how any threat, assuming one was made, affected her decision to enter the plea agreement. She further agreed as part of the plea agreement that she was entering the plea agreement voluntarily and that no one had forced or threatened her into doing so.(ECF No. 8-1 at 105).
"A habeas petitioner bears the burden of establishing that [their] guilty plea was not voluntary and knowing." Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006), citing Parke v. Raley, 506 U.S. 20, 31-34 (1992). The test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). A plea is "involuntary" if it is the result of threats, improper promises, or other forms of wrongful coercion. Brady v. United States, 397 U.S. 742, 750 (1970) ("[A] plea of guilty . . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).").
Nothing in the record reflects that Hill's guilty plea was the product of threats, bribes, duress, or coercion. At the time she entered her plea, Hill told the court she was not pleading guilty as the result of any threats or coercion, and that she was voluntarily pleading guilty. These statements, contemporaneous with her entry of a guilty plea pursuant to a signed plea agreement in which she also professed she was voluntarily pleading guilty (ECF No. 8-1 at 9), are a "formidable barrier" to this Court now determining her guilty plea was made under duress. Blackledge, 431 U.S. at 74; Muth v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012) ("Petitioner's statements at the plea colloquy carry a strong presumption of truth."). See also United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991) (reaching this holding in a section 2255 case). "The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge, 431 U.S. at 74. Accordingly, because Hill fails to provide any evidence contradicting her statements at her plea hearing that her guilty plea was voluntary and not coerced, the state court's denial of this claim for relief was not clearly contrary to nor an unreasonable application of federal law.
4. Newly Discovered Evidence
Hill asserts she is entitled to federal habeas relief because, after she was sentenced, new evidence came to light. She contends that after she entered her guilty plea Mr. Eason "admitted to his role in the crime." (ECF No. 1 at 9). Hill asserts she did not "know [of this evidence] until after the fact, and [therefore] it is new evidence to the petitioner since I had no knowledge of it and no access to it. [sic]" (Id.). Hill contends that if the evidence were known to her prior to the entry of her guilty plea, she would have refused the plea agreement. (Id.).
Hill raised this claim in her first Rule 32 action. The state habeas trial court found and concluded:
Defendant fails to establish a newly discovered evidence claim. She has not satisfied any of the necessary elements for such a claim and her contention is without merit that the report of a co-defendant's statement in a police report makes her realize she may have had a different role in the murder. Defendant was present and participated in the murder of the victim. She knows what she did without reading a police report. Furthermore, regardless of how another participant might view Defendant's particular role in the murder, under accomplice liability, Defendant's culpability is unaffected.(ECF No. 8-1 at 105-06).
"[T]he existence merely of newly discovered evidence relevant to the innocence of a state prisoner is not a ground for federal habeas corpus relief." Herrera v. Collins, 506 U.S. 390, 400 (1993). Post-conviction evidence serving only to "undercut the evidence presented at trial" does not warrant federal habeas relief. Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997). See also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (finding habeas relief unavailable where "the totality of the new evidence does not undermine the structure of the prosecution's case"); Swan v. Peterson, 6 F.3d 1373, 1384-85 (concluding newly-discovered evidence warrants habeas relief only when it bears on the constitutionality of the conviction and probably would produce an acquittal).
The state trial court found, as a matter of fact, that Hill's purportedly "newly discovered" evidence was known to her at the time of trial. This finding of fact was not clearly erroneous. Furthermore, Hill's allegation of "new evidence" is not asserted to support a claim of actual innocence; Hill does not seek to vacate her conviction, but instead asks the Court to order that she be resentenced. Hill does not deny that she acted as an accomplice, but asserts her minimal role in the victim's death warranted a lesser sentence.
To the extent Hill asserts she has raised a claim of "innocence" with regard to the degree of her involvement in the crime found by the state sentencing court, she does not present "new evidence" as that term is defined by the United States Supreme Court. In denying a similar claim in a similar context, Judge Rosenblatt adopted the following findings and conclusions of Magistrate Judge Burns:
. . . a petitioner's claim of actual innocence must be supported "with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324. The petitioner must also present "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial." Id. at 316; See also Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quoting Schlup, 513 U.S. at 327) (Petitioner "must show that, in light of all the evidence, including evidence not introduced at trial, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'"). See also Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003).Diaz v. Ryan, 2012 WL 7767577, at *9 (D. Ariz. Aug. 27, 2012) (some internal citations omitted), report and recommendation adopted, 2013 WL 1149590 (D. Ariz. Mar. 19, 2013).
Here, Petitioner has not offered any new evidence to support his challenge to his conviction. Rather, Petitioner relies upon evidence that was discovered and available to him prior to his change of plea proceedings. []
After hearing Petitioner's statement, the judge asked Petitioner if he desired to proceed to trial rather than enter into the plea agreement, and Petitioner voluntarily opted to plead guilty. [] Moreover, the trial judge considered the evidence when sentencing Petitioner. [] . . . Petitioner's conclusory arguments and pure speculation, however, simply do not satisfy the Schlup standard. See, e.g., Martinez v. Clark, 2009 WL 1788402 at *5 (C.D. Cal. June 23, 2009) (In the few cases habeas petitioners have been able to meet the Schlup standard, the "new evidence" consisted of "credible evidence that the petitioner had a solid alibi for the time of the crime, numerous exonerating eyewitness accounts of the crime, DNA evidence excluding petitioner and identifying another potential perpetrator, a credible confession by a likely suspect explaining that he had framed the petitioner, and/or evidence contradicting the very premise of the prosecutor's case against the petitioner."). . . .
The state court did not err in determining that the evidence Hill asserts is "newly discovered" did not warrant granting her relief regarding her sentence, inter alia because the evidence was known to Hill at the time of her guilty plea and sentencing. The state court's denial of relief on this claim was not clearly contrary to or an unreasonable application of federal law.
5. Sentencing
Hill argues she was erroneously sentenced to serve a term of community supervision after her release from prison. (ECF No. 1 at 6-11, 15). She contends the "[t]rial court imposed a term of supervised release for [second-degree] murder in violation of ARS § 13-710." (ECF No. 1 at 15). Hill maintains: "The date of offense was September 4, 2005, the date of change of plea proceedings was April 14, 2006. During this time there was no statute to support supervision beyond [a] prison term," citing Arizona Revised Statutes §§ 13-701 and 13-710. (Id.). She contends she raised this issue in her third petition for state post-conviction relief. (Id.). Respondents assert this claim was not properly exhausted in the state courts. Regardless of Hill's failure to properly exhaust this claim, the claim may be denied on the merits.
Hill's claim regarding her sentence fails because 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). As noted supra, the state trial court found Arizona law required Hill be sentenced to a term of community supervision to commence upon her release from prison. Additionally, "[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 Lewis v. Jeffers, 497 U.S. 764, 780 (1990); 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 their 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). Because this claim is not cognizable, Hill is not entitled to federal habeas relief on this claim.
III. Conclusion
The state court's conclusions that Hill was not denied her right to the effective assistance of counsel; that her guilty plea was not coerced or made under duress; that she waived her Blakely claim by pleading guilty according to the terms of the written plea agreement; and that she was not entitled to relief on her claim of "newly discovered evidence," were not clearly contrary to or an unreasonable application of federal law. Hill's claim that her sentence violated state law is not cognizable in a federal habeas action.
IT IS THEREFORE RECOMMENDED that Hill's petition seeking a federal writ of habeas corpus (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, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure 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). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The undersigned recommends that, should the Report and Recommendation be adopted and, should Hill seek a certificate of appealability, a certificate of appealability should be denied because she has not made a substantial showing of the denial of a constitutional right.
Dated this 20th day of February, 2020.
/s/_________
Camille D. Bibles
United States Magistrate Judge