Opinion
No. CV-19-00926-PHX-NVW (ESW)
11-22-2019
Tony Lee Horton, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Tony Lee Horton's ("Petitioner") "Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus" (the "Petition") (Doc. 1). Respondents have filed their Answer (Doc. 11), and Petitioner has filed a Reply (Doc. 16) and a "Supplement Authority of Legal Innocence, Miscarriage of Justice" (Doc. 15). For the reasons explained herein, it is recommended that the Court dismiss Grounds One, Two, Three, 4(c), and 4(d) as procedurally defaulted and deny Grounds 4(a) and 4(b) on the merits. The undersigned further recommends that the Court deny Petitioner's request for an evidentiary hearing.
I. BACKGROUND
On November 7, 2013, a Maricopa County Grand Jury indicted Petitioner on one count of aggravated assault, a class 3 dangerous felony. (Doc. 1 at 23-24). On April 3, 2014, the State filed a supervening indictment charging Petitioner with two counts of aggravated assault, class 3 dangerous felonies, and one count of disorderly conduct, a class 1 misdemeanor. (Id. at 28-29). The first aggravated assault count alleged that on or about September 22, 2013, Petitioner "using a knife, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused a physical injury to [R.C.]" in violation of Arizona law. (Id.) (emphasis omitted). The second aggravated assault count alleged that on or about September 22, 2013, Petitioner "intentionally, knowingly or recklessly caused a serious physical injury to [R.C.]" in violation of Arizona law. (Id. at 29).
Following trial, a jury found Petitioner guilty as charged. (Doc. 12 at 6). The trial court sentenced Petitioner to concurrent fifteen-year prison terms on the aggravated assault counts and to thirty-nine days in jail for the disorderly conduct count. (Id.).
As summarized by the Arizona Court of Appeals, the facts underlying Petitioner's convictions are as follows:
On September 22, 2013, shortly after R.C.'s family returned home from church, the family went outside to conduct footraces between R.C.'s seventeen-year-old son and a friend. The races were conducted on the street in front of [Petitioner's] house.
¶6 At the same time, [Petitioner] was inside preparing dinner with a small paring knife, when he heard a "commotion" outside. Because [Petitioner's] wife was ill, he went outside and asked R.C.'s family to hold the races somewhere other than the street in front of his house. R.C. responded, "Man, you know, basically we're not doing anything. The kids are out here just having fun. We're running. You know we're not doing anything." [Petitioner] announced he was going back inside his house, and R.C.replied, "You gotta do what you gotta do, man." [Petitioner] then returned to his home.
¶7 Shortly thereafter, the two teenagers ran another race on the street in front of [Petitioner's] house. When [Petitioner] realized R.C.'s family had not immediately left the area, [Petitioner] exited his home with the paring knife still in his right hand and walked toward R.C., who at the same time moved toward
[Petitioner].(Doc. 12 at 5-6) (footnotes omitted).
¶8 A neighbor's surveillance video introduced as evidence at trial indicates that, as the two men confronted one another on the curb between [Petitioner's] property and the street, R.C. punched [Petitioner], and [Petitioner] immediately slashed at R.C. with the knife. A brief altercation ensued, with R.C. continuing to throw punches and [Petitioner] swinging the knife at R.C. several times, cutting R.C.'s head, ear, hand, and chin. The final swing of the paring knife resulted in the knife blade breaking off in R.C.'s face before falling to the ground.
¶9 [Petitioner] retreated toward his garage, and R.C. ran to his home and retrieved a handgun. Brandishing the gun, R.C. went outside to his driveway, where he could see [Petitioner] in his garage across the street, and [Petitioner] could see him. R.C. pointed the gun at [Petitioner], but eventually went back inside, and both R.C.'s wife and [Petitioner] called 911 to report the incident. R.C. and [Petitioner] were separately treated at local hospitals, and [Petitioner] was later arrested.
After Petitioner's appointed counsel could not find a colorable claim to raise on appeal, Petitioner filed a pro se brief. (Id. at 37-68). On May 3, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 3-14). The Arizona Court of Appeals denied Petitioner's "Motion to Reconsider." (Id. at 79-80). The Arizona Supreme Court denied Petitioner's request for further review. (Id. at 85). On October 1, 2018, the United States Supreme Court denied Petitioner's Petition for Writ of Certiorari. (Id. at 87).
On October 22, 2015, Petitioner filed a Notice of Post-Conviction Relief ("PCR"). (Doc. 12-10 at 2). The trial court appointed counsel, who could not find a colorable issue to raise. (Doc. 13 at 3-4). On January 3, 2017, Petitioner filed a pro se PCR Petition. (Id. at 10-12). On July 13, 2017, the trial court dismissed the PCR proceeding. (Id. at 56-58). Petitioner sought further review by the Arizona Court of Appeals, which granted review, but denied relief. (Id. at 72-73). The Arizona Supreme Court denied Petitioner's Petition for Review. (Doc. 14 at 6).
On February 11, 2019, Petitioner timely initiated this federal habeas proceeding. (Doc. 1 ). As detailed in the Court's April 3, 2019 Screening Order, the Petition presents the following four grounds for habeas relief:
In Ground One, Petitioner alleges invidious discrimination by the prosecutor and trial court in violation of his First, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights. In Ground Two, Petitioner alleges a violation of the right not to be subjected to double jeopardy in violation of the Fifth, Ninth, and Fourteenth Amendments. In Ground Three, he alleges that his sentence was unconstitutionally enhanced. In Ground Four, Petitioner alleges that he received ineffective assistance of counsel in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights.(Doc. 7 at 2). Respondents have identified and separately addressed a number of sub-claims contained in Ground Four, which Respondents have labeled as Grounds 4(a)-(d). (Doc. 11 at 2). This Report and Recommendation addresses all of those sub-claims.
Section II of this Report and Recommendation pertains to Grounds One, Two, Three, 4(c), and 4(d). In Section 11(B), the undersigned finds that Grounds One, Two, Three, 4(c), and 4(d) are unexhausted because Petitioner did not fairly present them in his state court proceedings. The undersigned further finds in Section 11(C) that all of the unexhausted claims are procedurally defaulted because Petitioner would be precluded by the Arizona Rules of Criminal Procedure from returning to state court in an attempt to exhaust them. Section 11(D) explains that the procedural defaults should not be excused under the cause and prejudice and miscarriage of justice exceptions.
In Section III, the undersigned reviews the ineffective assistance of counsel claims presented in Grounds 4(a) and 4(b) and explains why they are without merit. Finally, Section IV explains the undersigned's recommendation that the Court deny Petitioner's request for an evidentiary hearing.
II. GROUNDS ONE , TWO, THREE, 4(c), AND 4(d) ARE PROCEDURALLY
DEFAULTED
A. Legal Standards Regarding Procedurally Defaulted Habeas Claims
1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a "state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts." Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) ("It has been settled since Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus."). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) ("[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.") (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) "exhausted" the available state court remedies; (ii) shown that there is an "absence of available State corrective process"; or (iii) shown that "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to "exhaust" state court remedies, a petitioner's federal claims must have been "fully and fairly presented" in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To "fully and fairly present" a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner "explicitly alerted" a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be "explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds").
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate "cause," a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate "prejudice," the petitioner must show that the alleged constitutional violation "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 ("Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied 'fundamental fairness' at trial.").
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 152 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a "constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim." Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).
B. Grounds One, Two, Three, 4(c), and 4(d) are Unexhausted
1. Ground One
In Ground One, Petitioner alleges "[i]nvidious discrimination by the Maricopa County Attorney's prosecution and Maricopa County Superior Court" in violation of Petitioner's First, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights under the U.S. Constitution. (Doc. 1 at 6). Petitioner asserts that
Under the carving doctrine the prosecution may carve out the largest crime, but only to carve out one crime. . . . The only
person whom suffered serious physical injury by assault with a dangerous instrument was the (one) 1 victim [R.C.]. But counts 2 and 3 listed in this cause of action should have been charged against [R.C.] because [R.C.] presented a firearm and raised it pointed it at the two teenagers and other members of the neighborhood that day. The Petitioner . . . did not have any physical confrontation with anyone but the alleged victim [R.C.]. [R.C.] did in fact assault with a deadly weapon(Id.). In his direct appeal, Petitioner raised a claim alleging vindictive prosecution. (Doc. 12 at 44). Petitioner recounted that the trial court granted his trial counsel's motion to remand the matter to the grand jury. (Id.). Petitioner asserted that "[a]s retaliation for this remand order, the prosecutor added the additional charge of aggravated assault and a misdemeanor count, as punishment for remand." (Id.). Petitioner further asserted that the Arizona Court of Appeals "should reverse this matter for vindictive prosecution under the Sixth and Fourteenth Amendments for fundamental error." (Id.). The undersigned finds that Respondents correctly assert that Petitioner failed to present Ground One to the Arizona Court of Appeals. (Doc. 11 at 9-10). Ground One is therefore unexhausted, and for the reasons set forth in Section 11(C) below, is procedurally defaulted.
2. Ground Two
In Ground Two of the Petition, Petitioner alleges a violation of his double jeopardy rights under the U.S. Constitution. (Doc. 1 at 7). Respondents correctly assert that Petitioner did not raise a double jeopardy claim in his state court proceedings. (Doc. 11 at 11) (citing Doc. 12 at 44-45). Ground Two therefore is unexhausted. Section 11(C) explains that Ground Two is procedurally defaulted.
3. Ground Three
Ground Three of the Petition alleges "[u]nconstitutional enhancement of my sentence because there cannot be two class 3 felony aggravated assaults on the same person, at the same time and same place, and to deliberately use a misdemeanor disorderly conduct to enhance sentence is at the very least a gross abuse of discretion at sentencing." (Doc. 1 at 8). In support of this claim, Petitioner references "Arizona's Truth in Sentencing Statute" and asserts that "[i]n Arizona, the maximum sentence that a judge may impose without additional specific aggravating factors is the presumptive sentence i.e. A.R.S. § 13-702 . . . ." (Id.).
Federal law "unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). Absent some federal constitutional violation, a violation of state law does not provide a basis for habeas relief. Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.") (emphasis in original); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (citations omitted). To plead a cognizable federal habeas claim, a petitioner must set forth in his or her petition the facts supporting the specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. "'[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a 'real possibility of constitutional error.'" Advisory Committee Note to Rule 4, foll. 28 U.S.C. § 2254 (citation omitted); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254 habeas petitions is "more demanding" than the notice pleading allowed under Fed. R. Civ. P. 8); Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (concluding that a habeas petitioner "failed to satisfy the specificity requirement of § 2254 pleadings or to show that there is a 'real possibility' of constitutional error" by "merely alleg[ing] that he ' . . . was not informed of the consequences of his plea. . . .'").
The undersigned finds that Ground Three may be dismissed on the basis that it fails to sufficiently set forth a cognizable federal habeas claim that Petitioner is in custody in violation of the U.S. Constitution or other federal law. Further, Respondents correctly assert that Petitioner did not present Ground Three in the state court. (Doc. 11 at 11). The undersigned finds that Ground Three is unexhausted and procedurally defaulted for the reasons explained in Section 11(C).
4. Ground Four
In Ground Four, Petitioner presents four ineffective assistance of counsel claims, which Respondents have enumerated 4(a)-(d) as follows:
a. Ineffective assistance of trial counsel in failing to challenge the supervening indictment, which added two additional charges;(Doc. 11 at 2). To the extent Petitioner raises other ineffective assistance of counsel claims in the Petition that are not identified above, the undersigned finds that the claims should be summarily dismissed as the claims are vague and conclusory. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (vague or conclusory claims without supporting factual allegations warrant summary dismissal of § 2255 motion); see also Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) ("It is well-settled that '[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.' ") (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). The undersigned further finds that the ineffective assistance of counsel claims in Ground 4(c) and 4(d) are cursory in nature and may be summarily dismissed on that basis.
b. Ineffective assistance of trial counsel in failing to properly advise him on the guilty plea;
c. Ineffective assistance of trial counsel in failing to advise him on how to properly present his claims on appeal and post-conviction; and
d. Ineffective assistance of appellate and post-conviction counsel in failing to advise him on how to properly present his claims on appeal and post-conviction.
Regarding Ground 4(a), Respondents do not dispute that Petitioner exhausted an ineffective assistance of counsel claim alleging that his trial counsel should have challenged the supervening indictment based on prosecutorial vindictiveness. (Doc. 11 at 12). Respondents also do not dispute that Petitioner exhausted his ineffective assistance of counsel claim presented in Ground 4(b). (Doc. 11 at 13). The undersigned finds that these claims have been exhausted, and they are reviewed on the merits in Section III.
The undersigned finds that Respondents correctly assert that Petitioner failed to present a claim in the state court that his trial counsel was constitutionally ineffective by failing to argue that the supervening indictment violated the Blockburger test and double jeopardy principles. (Doc. 11 at 12). To the extent Ground 4(a) asserts that Petitioner's trial counsel should have challenged the supervening indictment on those grounds, the undersigned finds that the claim is unexhausted and procedurally defaulted for the same reasons that Petitioner's other unexhausted claims are procedurally defaulted.
Respondents correctly observe that Petitioner did not raise the ineffective assistance of counsel claims presented in Grounds 4(c) and 4(d) in his state court PCR proceeding. (Id. at 13-14). "[I]neffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]" Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). "As a general matter, each 'unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion." Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (alteration in original). Because Grounds 4(c) and 4(d) present ineffective assistance of counsel claims that are separate and distinct from the ineffective assistance of counsel claims presented in state court, Grounds 4(c) and 4(d) are unexhausted. See Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (holding that an ineffective assistance claim for failure to vigorously cross-examine a witness did not exhaust ineffective assistance claims directed to other independent omissions by counsel); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) ("Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts"). The undersigned concludes that Grounds 4(c) and 4(d) are procedurally defaulted for the reasons set forth in the following section.
C. Unexhausted Grounds One, Two, Three, 4(c), and 4(d) are Procedurally Defaulted
As discussed above, Petitioner has not exhausted Grounds One, Two, Three, 4(c), and 4(d). If Petitioner returned to state court and presented those grounds in a second PCR Petition, the PCR Petition would be untimely. See Ariz. R. Crim. P. 32.1 and 32.4 (a petition for post-conviction relief must be filed "within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is later"). Although Arizona Rule of Criminal Procedure 32.4 does not bar untimely PCR claims that fall within the category of claims specified in Arizona Rule of Criminal Procedure 32.1(d) through (h), the undersigned does not find that any of the exceptions would apply. A state post-conviction action is futile where it is time-barred. See Beaty, 303 F.3d at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)).
Further, under Arizona Rule of Criminal Procedure 32.2(a)(3), a defendant is precluded from raising claims that could have been raised and adjudicated on direct appeal or in any previous collateral proceeding. See also State v. Curtis, 912 P.2d 1341, 1342 (Ariz. Ct. App. 1995) ("Defendants are precluded from seeking post-conviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for post-conviction relief."); State v. Berryman, 875 P.2d 850, 857 (Ariz. Ct. App. 1994) (defendant's claim that his sentence had been improperly enhanced by prior conviction was precluded by defendant's failure to raise issue on appeal).
Arizona Rule of Criminal Procedure 32.2(a)(3) constitutes an "adequate and independent" state ground for denying review. Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam) (preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) "are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) ("Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has been regularly and consistently applied, so it is adequate to bar federal review of a claim."); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) ("[A] claim that has been 'waived' under [Ariz. R. Crim. P. 32.2(a)(3)] is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice.") (quoting Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1998)).
Because adequate and independent state rules would preclude Petitioner from returning to state court to exhaust his unexhausted habeas claims, the undersigned finds that Grounds One, Two, Three, 4(c), and 4(d) are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted "if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred") (quoting Coleman, 501 U.S. at 735 n.1)).
This type of procedural default is often referred to as "technical" exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer 'available' to him.").
D. Petitioner's Procedural Defaults are Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
i. Petitioner has Not Established "Cause" for the Procedural Defaults
In order to establish cause for a procedurally defaulted claim, "a petitioner must demonstrate that the default is due to an external objective factor that cannot fairly be attributed to him." Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal quotation marks and citation omitted). Petitioner's status as an inmate with limited legal resources cannot constitute cause to excuse his procedural defaults. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause). Petitioner has failed to show cause for his procedural defaults. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the "cause and prejudice" exception to excuse his procedural defaults.
ii. The Miscarriage of Justice Exception Does Not Apply
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. A petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013) (quoting Schlup, 513 U.S. at 327). Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway, 223 F.3d at 990 (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)). In addition, "[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing [of actual innocence]." McQuiggin, 133 S.Ct. at 1935.
In his Reply, Petitioner contends that "[i]t is without question Petitioner is not guilty of at least Counts Two and Three of the supervening indictment." (Doc. 16 at 4). Petitioner has submitted a "Supplement Authority of Legal Innocence, Miscarriage of Justice" (Doc. 15) that merely cites four Supreme Court cases. Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Because Petitioner has failed to satisfy his burden of producing "new reliable evidence" of his actual innocence, the undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse his procedural defaults. See Smith v. Hall, 466 F. App'x 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the "threshold requirement of coming forward with 'new reliable evidence'"); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) ("To meet [the Schlup gateway standard], [petitioner] must first furnish 'new reliable evidence . . . that was not presented at trial.'") (quoting Schlup, 513 U.S. at 324). For the above reasons, the undersigned recommends that the Court dismiss Grounds One, Two, Three, 4(c), and 4(d) with prejudice.
III. MERITS REVIEW OF INEFFECTIVE ASSISTANCE OF COUNSEL
CLAIMS IN GROUNDS 4(a) and 4(b)
A. Reviewing Habeas Claims on the Merits
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. [R]esulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S. Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
2. [R]esulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
As to the first entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(1) above, "clearly established federal law" refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is "contrary to" such clearly established federal law if the state court (i) "applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases" or (ii) "confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent." Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to the second entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(2) above, factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fair-minded jurists could disagree" on the correctness of the state court's decision. Richter, 562 U.S. at 101; Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
B. Analyzing the Merits of Habeas Claims Alleging the Ineffective Assistance of Counsel
The "clearly established federal law" for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and "[s]urmounting Strickland's high bar is never an easy task." Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In assessing the performance factor of Strickland's two-part test, judicial review "must be highly deferential" and the court must try not "to second-guess counsel's assistance after conviction." Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers "whether there is any reasonable argument" that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In other words, it must be shown that the "likelihood of a different result [is] substantial, not just conceivable." Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
Finally, on federal habeas review, the "pivotal question is whether the state court's application of the Strickland standard was unreasonable." Richter, 131 S.Ct. at 785. And "it 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) (per curium). "Relief is warranted only if no reasonable jurist could disagree that the state court erred." Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted).
C. Ground 4(a)
As discussed, Respondents have liberally construed Ground 4(a) as alleging that Petitioner's trial counsel was constitutionally ineffective for failing to object to the supervening indictment based on prosecutorial vindictiveness. (Doc. 11 at 12). This claim is without merit as Petitioner has failed to establish that there was a reasonable likelihood that such an objection would have succeeded. As the Arizona Court of Appeals explained in rejecting Petitioner's prosecutorial vindictiveness claim on direct appeal:
The record supports the conclusion that the prosecutor acted within his discretion by adding Counts II and III to the sought-after indictment. The original indictment charged [Petitioner] with Count I, aggravated assault for using a deadly weapon or dangerous instrument. The prosecutor did not oppose remanding for a redetermination of probable cause, and the new indictment added Count II, aggravated assault for causing serious physical injury to the victim, and Count III, disorderly conduct, for "engaging in fighting, violent or seriously disruptive behavior." The facts presented at trial supported these additional charges, as indicated by the jury's decision to convict [Petitioner] of all charges. Moreover, "a certain amount of punitive intent . . . is inherent in any prosecution." State v. Mieg, 225 Ariz. 445, 448 ¶ 12, 239 P.3d 1258, 1261 (App. 2010) (citation omitted). On this record [Petitioner] has not shown either actual vindictiveness on the part of the prosecutor or circumstances presenting a realistic likelihood of vindictiveness.(Doc. 12 at 7). An attorney's "[f]ailure to raise a meritless argument does not constitute ineffective assistance." Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985); see also James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) ("Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel."); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance). The undersigned finds that Petitioner has failed to show that the state courts' rejection of Ground 4(a) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. (Doc. 13 at 56-58, 72-73). It is therefore recommended that the Court deny Ground 4(a).
Although the state courts summarily denied Petitioner's claim in Ground 4(a), Petitioner has not rebutted the presumption that the state courts rejected the claim on the merits. See Johnson v. Williams, 133 S.Ct. 1088, 1094-96 (2013) (when state court decision addresses some but not all of defendant's claims, Richter presumption applies to the unaddressed claims).
D. Ground 4(b)
On October 3, 2014, Superior Court Judge Robert L. Gottsfield held a settlement conference with the State and Petitioner. (Doc. 14-3 at 2-16). At the settlement conference, the State offered a plea agreement in which Petitioner would plead guilty to one count of aggravated assault as a non-dangerous class 3 felony, with a stipulated prison sentence of no less than the presumptive term of 3.5 years. (Id. at 12). Petitioner rejected the plea. In Ground 4(b), Petitioner alleges that his defense attorney gave him "incorrect advice" concerning the offered plea, stating that "I was told I would beat the case because it was self-defense due to the victim [R.C.] having brandished a weapon/firearm at me . . . ." (Doc. 1 at 9).
"A defendant has the right to make a reasonably informed decision whether to accept a plea offer." Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (citations omitted). While counsel must adequately inform the defendant, the question is 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 v. Richardson, 397 U.S. 759, 771 (1970). The Ninth Circuit has held that, in the plea advice context, "[c]ounsel cannot be required to accurately predict what the jury or court might find, but he can be required to give the defendant the tools he needs to make an intelligent decision." Id. at 881.
In Turner, the defendant turned down a second-degree murder plea offer and proceeded to trial. The jury convicted the defendant of first-degree murder and robbery and the defendant was subsequently sentenced to death. Id. at 861. The Ninth Circuit rejected the defendant's claim that his counsel was ineffective by advising him that fifteen years to life was the worst possible outcome, and that his case was not a "death penalty" case. Id. at 880-81. The Ninth Circuit explained that the defendant "was informed that he was subject to the death penalty, and of the plea offer," in contrast to cases where an attorney failed to advise his client of a plea offer or misled his client about the law. Id. at 881 "That counsel and [the defendant] chose to proceed to trial based on counsel's defense strategy and presumably sincere prediction that the jury would not award a sentence of death, does not demonstrate that Turner was not fully advised of his options." Id.; see also Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir. 2007) (explaining that "a mere inaccurate prediction, standing alone, would not constitute ineffective assistance, the gross mischaracterization of the likely outcome . . . combined with the erroneous advice on the possible effects of going to trial, falls below the level of competence required of defense attorneys.") (internal quotation marks omitted) (quoting Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986)).
Petitioner's self-serving claim that his attorney told him that he "would beat the case" at trial is insufficient to establish that his attorney rendered ineffective assistance of counsel. See Turner, 281 F.3d at 881 (self-serving statements alone are insufficient to establish constitutional violations because otherwise "every rejection of a plea offer, viewed perhaps with more clarity in the light of an unfavorable verdict, could be relitigated upon the defendant's later claim that had his counsel better advised him, he would have accepted the plea offer"). The record reflects that Petitioner was present at the October 3, 2014 settlement conference. (Doc. 14-3 at 4). The settlement judge adequately informed Petitioner of the sentences he was facing if he was convicted at trial. (Id. at 5-6). The State informed Petitioner of the evidence it would present to the jury. (Id. at 7-11). The victim also explained at the settlement conference what he would tell the jury at trial. (Id. at 14-15). After reviewing the transcript of the settlement conference, the undersigned finds that Petitioner was provided with the information he needed to make a reasonably informed decision regarding whether to accept the plea offer. See Turner, 281 F.3d at 881 (the defendant "had the tools he needed to make an informed decision"). The undersigned finds that Petitioner has failed to show that the state courts' rejection of Ground 4(b) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. (Doc. 13 at 56-58, 72-73). Accordingly, it is recommended that the Court deny Ground 4(b).
IV. PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING
Petitioner contends that he is entitled to an evidentiary hearing. (Doc. 16 at 4). AEDPA imposes "an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner "has failed to develop the factual basis of a claim in State court proceedings," no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (bold in original).
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits"); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that "the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims." Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, "if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) ("[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.") (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding "a district court is not obligated to hold evidentiary hearings to further develop the factual record" when the record is "amply developed" and explaining that "[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful").
V. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that the Court DISMISS WITH PREJUDICE Grounds One, Two, Three, 4(c), and 4(d) of the Petition (Doc. 1) and DENY Grounds 4(a) and 4(b) on the merits.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's request for an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of a number of grounds in the Petition (Doc. 1) is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief.
This Report and 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 fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen 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. 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 22nd day of November, 2019.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge