Opinion
CV-22-00164-TUC-JGZ (BGM)
03-07-2023
William Michael Jackson, Petitioner, v. Ryan Thornell,[1] et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Pending before the Court is Petitioner William Michael Jackson's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 11), and Petitioner replied (Doc. 12). Petitioner also filed a Notice of Filing Supplemental Authority (Doc. 13). The Petition (Doc. 1) is ripe for adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”),this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 8.)
Rules of Practice of the United States District Court for the District of Arizona.
The Magistrate Judge recommends the District Judge dismiss the Petition (Doc. 1).
A jury found Petitioner William Michael Jackson guilty of continuous sexual abuse of a child, sexual conduct with a minor under 15, and two counts of sexual conduct with a minor, all committed against his daughter, A.H. The jury also found him guilty of molestation of a child committed against his other daughter, J.H. The state trial court sentenced Jackson to 36 years' imprisonment.
In his Petition for Writ of Habeas Corpus, Jackson asserts (I) that Arizona's rape shield law violated his constitutional right to present a defense. Doc. 1 at 16-17. He also alleges that trial counsel had been ineffective in failing to: (II) adequately challenge the trial court's granting of the State's motion in limine precluding testimony about victim A.H.'s prior sexual activity; (III) adequately challenge the State's cold expert on the characteristics of child sexual abuse or, alternatively, to present expert rebuttal testimony; (IV) accurately rebut or defend against the testimony of the physician who had examined A.H.; (V) effectively argue against the admissibility of a video of A.H.'s forensic interview; and (VI) obtain an expert witness to address allegations of anal abuse and to assist in informing the state trial court about the necessity of A.H.'s medical records from a gynecological examination performed before she made the allegations against Jackson. Doc. 1 at 19, 21, 25, 28. Jackson's claims do not require relief because they are time-barred and/or procedurally barred without excuse.
Respondents filed an answer limited to affirmative defenses, as permitted by this Court's order.
I. STATEMENT OF TRANSCRIPTS AND RECORDS
As required by Rule 5 of the Rules Governing 28 U.S.C. § 2254 cases, Respondents submitted as exhibits (other than those provided by Jackson): 1) all relevant pleadings and orders from Jackson's trial (Doc. 11-1 at 3-28, Exhs. A through F); (2) all relevant pleadings and orders from Jackson's first proceeding for post-conviction relief (PCR) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure (Doc. 11-1 at 30-37, Exhs. G and H); (3) all relevant pleadings and orders from Jackson's second PCR proceeding (Doc. 11-1 at 39-86, Exhs. I through R); and (4) transcripts from Jackson's trial dated November, 18, 19, 23, and 24, 2010 (Doc. 11-2 at 3-210, Exh. S, Doc. 11-3 at 3-230, Exh. T, Doc. 11-4 at 3-312, Exh. U, Doc. 11-5 at 3-187, Exh. V). Rule 5(c) also requires Respondents to “indicate what transcripts (of pretrial, trial, sentencing or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed.” Respondents attached those parts of the transcript that they considered relevant. Id. Respondents are in possession of the following transcripts:
• R.T. 12/15/06 (arraignment-charges committed against A. only)
• R.T. 1/10/07 (bond hearing)
• R.T. 2/2/07 (motions to consolidate and reduce bond)
• R.T. 3/12/07 (motions to consolidate, dismiss count, amend indictment)
• R.T. 1/25/08 (status conference)
• R.T. 3/10/08 (status conference/motion to continue)
• R.T. 4/28/08 (status conference)
• R.T. 7/22/08 (status conference)
• R.T. 7/29/08 (status conference)
• R.T. 8/20/08 (defendant's motion for sanction)
• R.T. 9/3/08 (status conference)
• R.T. 11/3/08 (status conference)
• R.T. 11/10/08 (motions hearing) (provided by Jackson as Exh. 23)
• R.T. 11/18/08 (first trial, day 1)
• R.T. 11/19/08 a.m. (first trial, day 2)
• R.T. 11/19/08 p.m. (first trial, day 2)
• R.T. 11/20/08 (first trial, day 3)
• R.T. 11/21/08 (first trial, day 4) (provided by Jackson as Exh. 25)
• R.T. 11/25/08 (first trial, day 5)
• R.T. 11/25/08 (first trial, day 6) (provided by Jackson as Exh. 32)
• R.T. 1/22/09 (status conference)
• R.T. 1/28/09 (status conference)
• R.T. 2/11/09 (status conference)
• R.T. 3/12/09 (motion hearing)
• R.T. 4/13/09 (motion hearing)
• R.T. 5/14/09 (motion hearing)
• R.T. 5/22/09 (motion to continue trial)
• R.T. 6/10/09 (status conference)
• R.T. 9/28/09 (motion hearing)
• R.T. 11/23/09 (motion to continue trial)
• R.T. 12/1/09 (motion hearing)
• R.T. 12/8/09 (Rule 404(c) motion hearing)
• R.T. 6/21/10 (hearing on motion-admission of photograph)
• R.T. 8/3/10 (motion hearing)
• R.T. 8/10/10 (status conference)
• R.T. 8/23/10 (status conference)
• R.T. 11/2/10 (motions hearing) (provided by Jackson as Exh. 28)
• R.T. 11/9/10 (second trial, day 1)
• R.T. 11/16/10 (second trial, day 2) (provided by Jackson as Exh. 29)
• R.T. 11/17/10 (second trial, day 3) (provided by Jackson as Exh. 30)
• R.T. 11/18/10 (second trial, day 4)
• R.T. 11/19/10 (second trial, day 5)
• R.T. 11/22/10 (second trial, day 6) (provided by Jackson as Exh. 31)
• R.T. 11/23/10 (second trial, day 7)
• R.T. 11/24/10 (second trial, day 8)
• R.T. 12/29/10 (sentencing hearing)
Respondents attached-as exhibits S through V-the transcripts of Jackson's second trial dated November, 18, 19, 23, and 24. Those transcripts contain testimony referred to in Section II, Factual and Procedural Background. The rest of the transcripts are either provided by Jackson or not relevant.
The following proceedings were recorded, but not transcribed:
• 1/29/07 (arraignment-charge committed against J. only)
• 5/3/07 (pretrial conference)
• 11/19/07 (status conference)
• 10/22/08 (status conference)
• 12/22/08 (status conference)
• 2/10/10 (disclosure motion hearing)
• 3/10/10 (disclosure motion hearing)
II. FACTUAL AND PROCEDURAL BACKGROUND
“Once a defendant has been found guilty of the crime[s] charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (“[I]t is the responsibility of the jury-not the court-to decide what conclusions should be drawn from the evidence admitted at trial.”).
Jackson and Sharon had two daughters together-A.H., born on October 12, 1988, and J.H., born on November 28, 1989. Doc. 1-3 at 79-81. In 1993, Jackson and his then wife, Christina, got custody of his daughters from Sharon. Id. at 82, 185. Because of J.H.'s younger age, she and Christina developed a close mother-daughter-like relationship. Id. at 194, 301; Doc. 1-4 at 109, 130. Several witnesses stated that Jackson clearly favored A.H., spent more time with her than with J.H., was very physically affectionate with A.H., and often shared a bed with her. Doc. 1-3 at 166-67, 192-93; Doc. 1-4 at 46, 48-49, 109-11; Doc. 11-2 at 20, 51-57, 90-91, 149, Exh. S at 18, 49- 55, 88-89, 147; Doc. 11-3 at 97, Exh. T at 95; Doc. 11-4 at 81, 87, 118, 153, 165, Exh. U at 79, 85, 116, 151, 163. Jackson and his family lived a nomadic lifestyle, frequently moving among cities in California, Colorado, and Arizona for his construction jobs. Doc. 1-3 at 186-188, Exh. 3 at 182-84; Doc. 11-4 at 198-208, Exh. U at 196-206.
While the family lived in Colorado, Jackson awoke 7-year-old A.H. in the middle of the night and asked her to come with him to the living room. Doc. 11-2 at 178, Exh. S at 176. Jackson started a pornographic movie and told her to watch the girls because she was going to do what those girls were doing. Doc. 11-2 at 179, Exh. S at 177. As in the movie, Jackson directed A.H. to put her mouth on his penis and she obeyed. Doc. 11-2 at 180, Exh. S at 178. After a while, he told her to bend over the sofa, put a lubricant on his penis, inserted it into her anus, and ejaculated. Doc. 11-2 at 181-182, Exh. S at 179-80. As she cried, he said he “was being gentle,” would never “hurt daddy's little girl,” and that it was “our little secret.” Doc. 11-2 at 181-182, Exh. S at 179-80. They cuddled on the sofa for a while before returning to bed. Doc. 11-2 at 182, Exh. S at 180. Whenever Jackson and A.H. were home alone, which was infrequent, he continued the same sexual activities with her. Doc. 11-2 at 183-184, Exh. S at 181-182.
Sometime during the family's stay in Colorado, Christina awoke alone in the middle of the night, got out of bed, and saw Jackson and A.H. in the darkened living room together under a blanket or sheet with the television on. Doc. 1-3 at 205, Exh. 3 at 201. She admitted Jackson kept pornographic movies and magazines. Doc. 1-3 at 189, Exh. 3 at 185. While they lived in California, Christina returned home from work early one day and found Jackson and A.H. together in the locked master bathroom with the shower running. Doc. 1-3 at 203-204, Exh. 3 at 199-200; Doc. 1-4 at 16, Exh. 3 at 77. Christina pounded on the door, interrupting A.H. performing oral sex on Jackson. Doc. 1-3 at 204, Exh. 3 at 200; Doc. 11-2 at 185-186, Exh. S at 183- 84. A.H. denied to Christina and to Christina's mother that Jackson touched her inappropriately or did anything “that he shouldn't be doing.” Doc. 1-3 at 205, Exh. 3 at 201; 11-2 at 186-187, Exh. S at 184-85. A.H. did not understand the sexual activity with Jackson was abnormal and enjoyed sharing a secret with him. Doc. 11-2 at 187, Exh. S at 185.
After Jackson's marriage broke up in the spring of 2000, he and then 11-year-old A.H. moved from California to Arizona and stayed in the Marana home of a family they had met in Colorado. Doc. 1-3 at 191, Exh. 3 at 187; Doc. 1-4 at 44-48, Exh. 4 at 105-107. Initially, Jackson and A.H. shared a bed. Doc. 1-4 at 46, Exh. 4 at 107. J.H. stayed in California with Christina for a couple of months, then joined Jackson and A.H. at the family's home. Doc. 1-4 at 47, Exh. 4 at 108. The three of them shared a room for a short time until the family constructed an addition for Jackson. Doc. 1-4 at 47, Exh. 4 at 108. During this time, Jackson and A.H. continued to have oral and anal sex, but on a more infrequent basis because of the number of people with whom they lived. Doc. 11-2 at 188190, Exh. S at 186-88. Jackson began having A.H. arouse his penis with her hands. Id.
In early 2001, after about 10-12 months in Arizona, Jackson, A.H., and J.H. moved into a 1-bedroom cabin near the family's home. Doc. 1-4 at 50, Exh. 4 at 111; Doc. 11-4 at 211, Exh. U at 209. Jackson and A.H. shared a queen-size bed and J.H. slept alone in a twin bed. Doc. 1-4 at 111-12, Exh. 4 at 172-173. Jackson would walk around the house naked sometimes. Doc. 1-4 at 166, Exh. 4 at 227. One day when J.H. was either away from the cabin or asleep, Jackson and A.H. had vaginal intercourse for the first time, using a pineapple-flavored lubricant that he had her rub on herself and on his penis. Doc. 11-2 at 190-193, Exh. S at 188- 91.
While they lived in the cabin, J.H. asked Jackson about the meaning of an inappropriate comment made by a substitute teacher. Doc. 1-4 at 116-119, Exh. 4 at 177-180. Jackson responded that he was going to teach the girls about “the birds and the bees” because their mother was not around to do it. Doc. 1-4 at 116-119, Exh. 4 at 177-180. Instead of explaining anything to his daughters, he showed them pornographic pictures in a magazine and then played a pornographic video for them. Doc. 1-4 at 119-122; Exh. 4 at 180-183, Doc. 11-2 at 205-206, Exh. S at 203-204. A.H. had already seen that movie and silently wondered “why [Jackson] was bringing [J.H.] into that world.” Id.
During the movie, Jackson asked J.H. if she knew what an erection was and placed her finger on the tip of his erect penis. Doc. 1-4 at 119-121, Exh. 4 at 180-181, Doc. 1-4 at 163-164, Exh. 4 at 223-224. She pulled her hand away after a few seconds. Doc. 1-4 at 121, Exh. 4 at 182. J.H. went to bed before Jackson that night. Doc. 1-4 at 123, Exh. 4 at 184. A short time later, Jackson got in bed with J.H. naked, placed her hand on his stomach, and pushed her hand down further. Id. at 123-24, 166, 172. When J.H. pulled her hand away, he asked “what, you're not going to touch it for me?” Doc. 1-4 at 124, Exh. 4 at 185. J.H. refused, and Jackson returned to the living room. Id.
Jackson admitted to the wife of the couple with whom they had lived in Marana that he had shown pornography to his daughters because he did not know how to talk to them about sex. Doc. 1-4 at 50-52, Exh. 4 at 111-112. After that, the wife asked A.H. “whether there was something going between her and [Jackson].” Id. at 52. A.H. replied, “No.” Id. A.H. enjoyed Jackson's attention and liked having the secret with him. Doc. 11-2 at 187, Exh. S at 185.
Early in the summer of 2001, Jackson began dating a woman named Dawn. Doc. 11-4 at 212, Exh. U at 210. About a month and a half later, Jackson and his daughters moved in with Dawn and her two sons. Doc. 1-3 at 159-162, Exh. 3 at 155-158, Doc. 114 at 212, Exh. U at 210. When Dawn and the others were not home, Jackson and A.H. would have sex about once a week in the bed he shared with Dawn. Doc. 11-2 at 194-196, Exh. S at 192- 194. In early 2002, Jackson and Dawn ended their relationship. Doc. 11-4 at 215, Exh. U at 213.
In May 2002, Jackson and his daughters moved into a 2-bedroom apartment. Doc. 11-4 at 223, Exh. U at 221. About a month later, J.H. left to spend the summer with Christina and did not return to Arizona. Doc. 1-3 at 194, Exh. 3 at 190, Doc. 11-4 at 224, Exh. U at 222. J.H. told Christina's sister and then told Christina that Jackson had molested her at the cabin. Doc. 1-3 at 195-196, Exh. 3 at 191-192; Doc. 1-4 at 92-96, Exh. 4 at 153-154. Christina called Jackson and confronted him with J.H.'s disclosure. Doc. 1-3 at 196, Exh. 3 at 192. Jackson denied molesting J.H. and told Christina that J.H. made up the story so that she could stay in California with her. Doc. 1-3 at 196-197, Exh. 3 at 192-193. J.H. had not told anyone before because she “was afraid that [she] wasn't going to be believed.” Doc. 1-4 at 125-126, Exh. 4 at 186-187. Indeed, A.H.'s reaction to J.H.'s disclosure was to call J.H. a “liar.” Doc. 1-3 at 150, Exh. 3 at 146; Doc. 1-4 at 136, Exh. 4 at 197.
After J.H. left, sexual activity between Jackson and A.H. became “an everyday thing,” Doc. 11-2 at 197, Exh. S at 195. Shortly thereafter, A.H. started on birth control. Doc. 11-2 at 196-197, Exh. S at 194-195. In late spring 2004, Jackson and A.H. moved into a house with friends of Jackson, where the two again shared a bedroom and a bed. Doc. 11-2 at 147-149, Exh. S at 145-147; Doc. 11-4 at 230, Exh. U at 228. The woman of the couple with whom Jackson and A.H. lived once discovered them together naked. Doc. 11-2 at 199-200, Exh. S at 198-99. When the woman confronted A.H., she denied any sexual relationship with Jackson. Doc. 11-2 at 201, Exh. S at 199. A.H. testified that she made no sounds during sex with Jackson, and that he “wasn't very vocal, not at least voicewise, loud.” Doc. 11-2 at 198, Exh. S at 196. Shortly before A.H.'s 16th birthday in the fall of 2004, she found herself repulsed by her sexual relationship with Jackson and refused any further sexual overtures from him. Doc. 11-2 at 202, Exh. S at 200.
In early 2005, Jackson and A.H. moved into the home of another of Jackson's girlfriends and her two sons. Doc. 11-2 at 48-49, Exh. S at 46-47. In the few months A.H. lived there, Jackson's girlfriend awoke 3 or 4 times to discover Jackson in bed with A.H. Doc. 11-2 at 51-52, Exh. S at 49-50; Doc. 11-3 at 96-97, Exh. T at 94-95. When she asked A.H. about whether there was something going on between her and Jackson, A.H. would either “get quiet or start crying.” Doc. 11-2 at 53, Exh. S at 51. When Jackson's girlfriend asked him if there was anything going on between him and A.H., he told her it was none of her business. Id. Jackson's girlfriend discovered a long hand-written letter from Jackson to A.H. “describing his physical and emotional relationship with [A.H.],” expressing his displeasure with her having a boyfriend, and pondering what would happen if A.H.'s boyfriend proposed to her. Doc. 11-2 at 54-57, Exh. S at 52-55. In April, Jackson's anger and jealousy over A.H.'s sexual relationship with that boyfriend became explosive, erupted into a domestic violence issue between him and A.H., and ended with them being arrested. Doc. 11-2 at 14-15, 56, 60-67, 161-165, Exh. S at 12-13, 54, 58-65, 159-163; Doc. 11-4 at 237-238, Exh. U at 235-236. About a week later, A.H. moved to her mother's home in Oregon and did not return to Arizona. Doc. 1-3 at 84, Exh. 4 at 145; Doc. 11-2 at 130-131, 139-141, Exh. S at 128-129, 137-141.
In November 2005, A.H., her mother Sharon, and another friend reminisced over old photographs and came across a photograph of the first time Jackson held A.H. as a newborn. Doc. 1-3 at 93-97, Exh. 3 at 89-93; Doc. 11-3 at 21-22, Exh. T at 19-20. A.H. asked Sharon, “If I sent this [photograph] to him, do you think that he'll realize that I'm his daughter and not his wife?” Doc. 1-3 at 93-94, Exh. 3 at 89-90; Doc. 1-4 at 277-279, Exh. 4 at 77-78; Doc. 11-3 at 21-22, Exh. T at 19-20. A.H. then told Sharon about the years of sexual abuse, and they cried together. Doc. 1-3 at 93-95, Exh. 3 at 89-91; Doc. 1-4 at 279, Exh. 4 at 79; Doc. 11-3 at 22-23, Exh. T at 20-21. The next day, Sharon contacted police and confronted Jackson by telephonic voice mail. Doc. 1-3 at 97-98, Exh. 3 at 93-94.
Jackson told a woman he was dating at the time that A.H. had made up the allegations so she could live with her mother. Doc. 11-4 at 53-58, Exh. U at 52-56. He never mentioned his second daughter J.H., or her allegation, nor did he say anything to her about A.H. being upset because he would not buy her a car. Doc. 11-4 at 61-62, Exh. 4 at 59-60. Another woman Jackson Dated: that time, and later married, testified that Jackson said that J.H. made an allegation against him so she could stay in California. Doc. 11-4 at 16, Exh. 4 at 14. Jackson explained A.H.'s allegations by saying that A.H. said she would “ruin his life” because he would not buy her a car. Doc. 11-4 at 26-27, Exh. 4 at 24-25.
A.H. underwent a physical examination and forensic interview in Oregon in February 2006. Doc. 1-3 at 103, 105, Exh. 3 at 99, 101. Based on a report from Oregon police and A.H.'s videotaped interview, the Tucson Police Department became involved in the investigation about a week later. Doc. 11-3 at 202, Exh. T at 200; Doc. 11-5 at 3234, Exh. V at 30-32. A.H. and J.H. never discussed the details of their abuse with one another. Doc. 1-4 at 126, Exh. 4 at 187.
Indeed, J.H. did not learn the details of A.H.'s abuse until a 2008 hearing before Jackson's first trial. Doc. 1-4 at 127, Exh. 4 at 188.
Jackson was charged separately with the charges against A.H. and J.H. Doc. 11-1 at 3-8, Exh. A at 3-8. The indictment involving A.H. included two charges of involving a minor in a drug offense (using marijuana). Doc. 11-1 at 3-4, Exh. A at 3-4. The marijuana charges were severed for trial, and a jury acquitted Jackson of the drug offenses. Doc. 1-1 at 100-101. The sexual charges were consolidated for trial. Doc. 11-1 at 10-11, Exh. B. Jackson's first trial ended in a mistrial. Doc. 1-1 at 100-101. After his second trial, a jury found him guilty of molesting J.H., and continuous sexual abuse of a child, sexual conduct with a minor under 15, and two counts of sexual conduct with a minor, all committed against A.H. Doc. 1-1 at 100-101; Doc. 11-1 at 13-14, Exh. C. The state trial court imposed a combination of concurrent and consecutive, mitigated sentences totaling 36 years. Doc. 1-1 at 100; Doc. 11-1 at 16-19, Exh. D.
A. Direct appeal
In his opening brief on appeal, Jackson asserted six arguments: (1) the state trial court erred in permitting the prosecution to play a recording of A.H.'s forensic interview without volume that showed “her crying for an extended period of time, purportedly to rebut the defense claim that she had made her claims because she was a lying vindictive drama queen”; (2) the state trial court erred in allowing the prosecution to admit in evidence “hearsay portions of [J.H.] ‘letter to God'” that allegedly reinforced A.H.'s testimony in the absence of physical evidence; (3) the state trial court erred in denying his request to instruct the jury that he had been acquitted of providing marijuana to A.H. after she testified that he had given her “a joint” before they had had sex; (4)(a) the state trial court erred when it did not allow A.H.'s friend to testify that A.H. “had confided in her that [A.H.] had used a vibrator anally as evidence of the origin of her anal abnormality”; (4)(b) the clear and convincing standard of Arizona's rape shield late violated his constitutional right to present a complete defense; (5) the trial court erred in denying his motion for a Daubert hearing on the testimony of the State's cold expert on child sexual abuse; and (6) the state trial court failed to give him presentence incarceration credit for all of his concurrent sentences. Doc. 1-1 at 4, 28, 41, 48, 54, 63, 72, Exh. 1 at 4, 15, 24, 35, 41, 50, 54, 59.
The Arizona Court of Appeals affirmed Jackson's convictions, modified the sentences on two of the convictions to reflect the correct number of days of presentence incarceration credit, and remanded the case to the trial court to enter a sentencing order reflecting the modification. Doc. 1-1 at 99-114, Exh. 3. The Arizona Supreme Court denied Jackson's petition for review without comment. Doc. 1-1 at 116, Exh. 4.
B. Jackson's first PCR proceeding
Jackson filed a PCR notice on April 20, 2012, and the state PCR court appointed counsel to represent him. Doc. 11-1 at 30-32, 32-37, Exhs. G, H. In his PCR petition, Jackson asserted that trial counsel had been ineffective in failing to: (1) effectively argue against the admissibility of a video of A.H.' forensic interview; (2) complete the record regarding alleged marijuana use and his acquittal of those charges; (3) adequately challenge the trial court's granting of the State's motion in limine precluding testimony about victim A.H.'s prior sexual activity; (4) adequately challenge the State's cold expert on the characteristics of child sexual abuse or, alternatively, to present expert rebuttal testimony; (5) accurately rebut or defend against the testimony of the physician who had examined A.H.; and (6) adequately prepare for trial in several respects. Doc. 1-1 at 125, 126, 128, 130, 133, 140, Exh. 6. The state PCR court analyzed each of Jackson's claims, concluded that he had “failed to establish both prongs of the Strickland test as required for a finding of ineffective assistance of counsel,” and dismissed the petition because it lacked any colorable claims. Doc. 1-1 at 197-202, Exh. 7.
Stricklandv. Washington, 466 U.S. 668, 700 (1984).
In his petition for review to the Arizona Court of Appeals, Jackson challenged the state PCR court's failure to hold an evidentiary hearing despite his showing of colorable claims, denial of his requests for additional time, and denial of his motion for reconsideration. Doc. 1-1 at 205-210, 214, Exh. 8 at 2. The state appellate court granted review, concluded that Jackson had not met his burden of demonstrating that the state PCR court had abused its discretion in denying his PCR petition and his motion for reconsideration, and denied review. Doc. 1-1 at 264, 266-67, Exh. 9. The Arizona Supreme Court denied Jackson's petition for review without comment on July 1, 2015. Doc. 11-1 at 269, Exh 10.
C. Jackson's secondPCRproceeding
No second PCR notice appears in the record. On August 11, 2015, Jackson's counsel, appointed to represent him for the petition for review in his first PCR proceeding, filed a motion requesting that the state PCR court appoint counsel to represent Jackson “for purposes of pursuing a Rule 32 [PCR] petition.” Doc. 11-1 at 39-40, Exh. I. Apparently, the state PCR court appointed counsel, but the order did not get filed. Doc. 1-1 at 274-75, Exh. 12 at 1-2. The court was unaware of the omissions until Jackson sent a written inquiry on December 28, 2015. Id. The state PCR court appointed counsel to represent Jackson in his second PCR proceeding and set a due date of June 3, 2016. Id. On that date, appointed counsel filed a notice stating that he had thoroughly reviewed the record and transcripts and considered Jackson's input, but could find no good-faith basis in law or fact for relief. Doc. 11-1 at 42-43, Exh. J. The state PCR granted Jackson until July 25, 2016, to file a pro se petition. Doc. 11-1 at 46, Exh. K. On October 13, 2016, the court dismissed the proceeding stating that no PCR petition had yet been filed. Id.
Records reviewed in Pima County's Agave site for cause numbers CR-2006-4488 and CR-2007-0250, and the Arizona Court of Appeals' records for 2-CA-CR 2020-0122-PR (second PCR proceeding).
About 3 weeks later, Jackson filed a motion to appoint new counsel. Doc. 11-1 at 48-50, Exh. L. On November 9, 2016, Jackson asked the state PCR court to reconsider its dismissal of his PCR proceeding, claiming that appointed counsel failed to follow through with his promise to file an extension and that counsel had not sent him all of necessary documents. Doc. 11-1 at 52-57, Exh. M. The state PCR court denied Jackson's motion for new counsel, vacated the dismissal order, and set a due date of January 9, 2017, for Jackson's pro se petition. Doc. 11-1 at 59-60, Exh. N. The state PCR court granted Jackson's request for investigative hours and at least 10 extension requests. Doc. 11-1 at 62, 64, Exhs. O, P.
The state PCR court's order mistakenly states January 9, 2016. Doc. 11-1 at 5960, Exh. N.
Two weeks after the October 14, 2019, due date, retained counsel filed a notice of appearance and requested additional time in which to file a petition. Doc. 11-1 at 79- 80, Exh. Q. The state PCR court granted counsel four extension requests before a petition was filed on January 31, 2020. Doc. 11-1 at 82-86, Exh. R; Doc. 1-1 at 277-297, Exh. 13. In that petition, counsel asserted that trial counsel had been ineffective in failing to: (1) obtain an expert witness to address allegations of anal abuse and to secure A.H.'s medical records from a gynecological examination performed before she made the allegations against Jackson; (2) file a special action to secure those records; (3) obtain an expert “to testify about the physical impact of repeated anal penetration on a child victim” to rebut the testimony of the physician who had examined A.H.; and (4) obtain an expert to challenge the State's cold expert on the characteristics of child sexual abuse. Doc. 1-1 at 278-79, Exh. 13 at 2-3, Doc. 1-2 at 58, Exh. 14 at 2.
The state PCR court found claims 3 and 4 precluded because they had been raised in Jackson's first PCR proceeding, found claims 1 and 2 precluded because they had not been raised in his first PCR petition, and that none of the claims were among the exceptions in Rule 32.2(b) that could be raised in a successive or untimely PCR proceeding. Doc. 1-2 at 59, Exh. 14 at 3. The court further found that Jackson failed to present any material issue of law or fact that would entitle him to an evidentiary hearing and dismissed the petition. Doc. 1-2 at 60.
In his petition for review to the Arizona Court of Appeals, Jackson asserted that trial counsel had been ineffective in failing to obtain an expert witness to address the allegations of anal abuse; secure A.H.'s medical records from a gynecological examination performed before she made the allegations against Jackson; and file a special action to secure those records. Doc. 1-2 at 63, Exh. 15. He also asserted due process and disclosure violations that resulted in his inability to effectively cross-examine witnesses. Doc. 1-2 at 67-71, Exh. 15. The Arizona Court of Appeals granted review but denied relief. Doc. 1-2 at 84, 87. The appellate court refused to address the latter claims because Jackson had not presented them in his PCR petition and found his ineffective assistance of counsel (IAC) claims precluded by Rules 32.1(a) and 32.2(a)(3). Doc. 1-2 at 86-87. The Arizona Supreme Court denied review without comment. Doc. 1-2 at 102, Exh. 18.
III. JACKSON'S PETITION IS UNTIMELY UNDER AEDPA
Jackson's petition for Writ of Habeas Corpus is untimely and, neither statutory nor equitable tolling renders his petition timely, which precludes relief under the Anti-terrorism and Effective Death Penalty Act (AEDPA).
A. Statutory tolling
As applicable here, AEDPA requires that a state prisoner file his federal habeas petition within one year from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A), with time tolled during the pendency of a properly filed application for post-conviction relief, 28 U.S.C. § 2244(d)(2). “[T]he period of ‘direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [90-day] period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.” Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999); see also Jimenez v. Quarterman, 555 U.S. 113-21 (2009); Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
A state post-conviction “application is ‘filed' ... when it is delivered to, and accepted by, the appropriate court officer for placement into the official record . . And an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filing” in the appropriate state court. Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations omitted).
The state trial court sentenced Jackson on December 29, 2010, and he filed a notice of appeal on January 14, 2011. Doc. 11-1 at 16-19, 21-25, Exhs. D, E. The Arizona Court of Appeals issued its memorandum decision on March 12, 2012. Doc. 1-1 at 99, Exh. 3. The Arizona Supreme Court denied Jackson's petition for review on December 5, 2012. Doc. 1-1 at 116, Exh. 4. After the Arizona Court of Appeals issued its mandate, the state trial court complied with that court's direction to amend Jackson's sentencing order on May 28, 2013. Doc. 1-1 at 114, Exh. 3, Doc. 1-1 at 118; Doc. 11-1 at 27, Exh. F. Jackson had 20 days in which to file a notice of appeal challenging his new sentence. Ariz. R. Crim. P. 31.2(a)(2)(A). Because he did not do so, his became final on June 17, 2013. Absent tolling, the statute of limitations began to run on June 18, 2013, and expired a year later on June 18, 2014.
In Arizona, a timely PCR notice filed pursuant to Rule 32.4 tolls the statute of limitations. Isley v. Arizona Dept. of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004). Jackson filed his first PCR notice on April 20, 2012, Doc. 11-1 at 30, Exh. G, thereby tolling the statute of limitations before it had started to run. The Arizona Court of Appeals granted review but denied relief on December 26, 2014. Doc. 1-1 at 263. The Arizona Supreme Court denied review on July 1, 2015. Doc. 1-1 at 269, Exh. 10. The statute of limitations began to run the following day, July 2, 2015, and expired a year later, on July 5, 2016. Jackson did not file his habeas petition until April 5, 2022, almost 6 years after the statutory time period had expired. His second PCR proceeding was not properly filed under state rules because the state courts found that it raised only precluded claims. See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3), 32.2(b). Doc. 1-2 at 59, Exh. 14, Doc. 1-2 at 86-87, Exh. 16. Thus, it was not “pending” for statutory tolling purposes of § 2244(d). See Allen v. Siebert, 552 U.S. 3, 5-6 (2007) (per curium); Pace v. DeGuglielmo, 544 U.S. 408, 417 (2005).
July 2, 2016, was the Saturday of the Fourth of July holiday weekend. Under Rule 6(a)(1)(C) of the Federal Rules of Civil Procedure, and Rule 1.3 of the Arizona Rules of Criminal Procedure, when the last day of a time period “is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”
Even assuming arguendo that Jackson's second PCR petition tolled the statute to limitations, his habeas petition is still untimely. The statute began to run on July 2, 2015, and ran for 40 days until August 11, 2015, when counsel, appointed for Jackson's first PCR, filed a request to appoint counsel to represent Jackson “for purposes of pursuing a Rule 32 [PCR] petition.” Doc. 11-1 at 39-40, Exh. I. After the state PCR court dismissed Jackson's second PCR petition, the Arizona Court of Appeals granted review, but denied relief on September 15, 2020. Doc. 1-2 at 59, Exh. 14 at 84. The Arizona Supreme Court denied review on February 5, 2021. Doc. 1-2 at 102, Exh. 18. The statute of limitations began to run on February 6, 2021, and ran for 325 days until, December 28, 2021. Jackson's April 5, 2022, habeas petition is still untimely and should be dismissed with prejudice. See Pace, 544 U.S. at 419 (late-filed federal habeas petition barred by AEDPA statute of limitations).
The Court does not treat this motion as a second PCR notice because it appears that the state PCR court did so. Doc. 1-1 at 274-75; Doc. 11-1 at 42, 46, 59, Exhs. J, K, N.
B. Equitable tolling
To be entitled to equitable tolling, a petitioner must show that (1) “he has been pursuing his rights diligently” and (2) that “some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation and internal quotation marks omitted); see also Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (no equitable tolling absent “extraordinary circumstances beyond the prisoner's control that made it impossible to file a petition on time”) (citation and internal quotation marks omitted). With respect to the diligence prong, Holland requires only “reasonable diligence,” not “maximum feasible diligence.” 560 U.S. at 653 (citations omitted). “[T]he petitioner bears the burden of showing that equitable tolling is appropriate.” Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). It is well established that “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation and interior quotation marks omitted).
Citing Holland, Jackson argues that he is entitled to equitable tolling because he has “diligently pursued his rights” and “extraordinary circumstances” prevented him from filing a timely petition. Doc. 1 at 15. He asserts that the deficient performance of the attorney that he hired to file his petition for review, following the state PCR court's denial of his first petition, prevented the claims raised in this first petition from being considered by the Arizona Court of Appeals. Doc. 1 at 16. While IAC of PCR counsel may provide cause for failing to properly exhaust ineffective assistance of trial counsel claims, see Martinez v. Ryan, 566 U.S. 1, 14 (2012), it does not apply to untimeliness. Indeed, if Jackson had not filed a second (and futile) PCR petition to try to exhaust his claims and instead pursued a habeas petition, he may have avoided the time bar of the statute of limitations and had the chance to argue cause under Martinez. Jackson has failed show that “extraordinary circumstances” prevented him from filing a timely habeas petition.
Jackson further claims that failure to consider his petition “would result in a fundamental miscarriage of justice,” because the “cumulative effect of the errors in [his] trial demonstrates that but for those errors, no reasonable jury would have found him guilty.” Doc. 1 at 15-16. But Jackson fails to explain how the state courts misapplied federal law or how his asserted grounds for relief would have changed the verdicts. Id. at 17-31. In sum, Jackson has not met “the [very high] threshold necessary to trigger equitable tolling.” Miranda, 292 F.3d at 1066.
Jackson's tardiness cannot be excused by statutory or equitable tolling.
IV. EXHAUSTION/PROCEDURAL DEFAULT
Only Jackson's Ground I claim of a violation of his constitutional right to present a defense has been properly exhausted. His IAC claims in Grounds II through VI are procedurally defaulted without excuse.
A. The exhaustion requirement
Generally, a federal court may only consider a petitioner's application for a writ of habeas corpus if “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). Proper exhaustion requires a petitioner to fairly present his federal claims to the trial level and to “invok[e] one complete round of the State's established appellate review process,” presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Wooten, 540 F.3d at 1025 (“The rule of exhaustion requires that a habeas petitioner ‘fairly present' his federal claims to each appropriate state court.”). In Arizona, a prisoner does not exhaust a claim for federal review in a non-capital case unless he has presented it to the Arizona Court of Appeals. Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005); Swoopes v. Sublett, 196 F.3d 1008, 1010-11 (9th Cir. 1999).
A claim is “fairly present[ed]” only when a petitioner “clearly state[s] the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). It is not enough, for example, that “all the facts necessary to support the federal claim were before the state courts or that a somewhat similar statelaw claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal citation omitted). “[T]he petitioner must make the federal basis of the claim 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.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (emphasis added; internal citations omitted), modified by 247 F.3d 904 (9th Cir. 2000); see also Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005) (“[Petitioners must plead their claims with considerable specificity before the state courts in order to satisfy the exhaustion requirement.”).
B. Procedural default principles
Whether or not a petitioner has “fairly present[ed]” a claim to the state courts, the doctrine of procedural default may bar habeas review of a prisoner's federal claims. See generally Coleman, 501 U.S. at 729-32; Murray v. Carrier, 477 U.S. 478, 485-92 (1986). There are two forms of procedural default.
First, a claim is procedurally defaulted when a petitioner attempted to raise it in state court, but the state court expressly applied a procedural bar to avoid considering its merits. See Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991); see also Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (procedural default “applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements”) (internal quotation marks omitted). In determining whether the state courts have imposed a procedural bar, this Court reviews the last reasoned decision of the state courts, Bailey v. Roe, 339 F.3d 1107, 1112-13 (9th Cir. 2003), and a subsequent decision denying review without comment does not vitiate the procedural default. See Ylst, 501 U.S. at 802 (when the last-reasoned state court decision imposes a procedural default on a claim, the habeas court presumes that a subsequent state court decision rejecting that claim did not consider its merits).
Second, a claim is deemed technically exhausted, but procedurally defaulted, when a petitioner has not raised it in state court and a return to state court to exhaust it would be futile in light of state procedural rules. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); see also Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (“[I]f 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 exhaustion requirement would now find the claims procedurally barred . . . there is a procedural default for purposes of federal habeas.”). In Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are barred from federal review, because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(a), 33.1(b)-(h), 33.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief, except for narrow exceptions); and 32.4 and 33.4 (time bar). Rule 32 presents a procedural bar for a claim that could have been raised in the prior proceedings. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (state court determinations under Rule 32.2(a) are independent of federal law); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32.2(a)). A state postconviction action is futile where it is time-barred. Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness under Ariz. R. Crim. P. 32.4(b) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)).
Effective January 1, 2020, the substance of former Rule 32 was divided among two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pleaded guilty or no contest (new Rule 33). See Ariz. Supreme Ct. Order No. R-19-0012.
This Court may review a procedurally defaulted claim only if the prisoner alleges and proves both “cause” for the procedural default and “actual prejudice” arising from the alleged constitutional error, Manning v. Foster, 224 F.3d 1129, 1132-33 (9th Cir. 2000), or if the petitioner establishes that a fundamental “miscarriage of justice” has occurred. Sawyer v. Whitley, 505 U.S. 333, 339 (1992). A petitioner establishes “cause” only by demonstrating that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753. “Prejudice” is actual harm resulting from the alleged constitutional error. Carrier, 477 U.S. at 494 (a habeas petitioner does not demonstrate prejudice merely by pointing to a possibility of prejudice; rather, the habeas petitioner must demonstrate the error “worked to his actual and substantial disadvantage,” infecting the entire proceeding with constitutional error) (emphasis in original); Stokely v. Ryan, 705 F.3d 401, 404 (9th Cir. 2012) (to demonstrate prejudice excusing procedural default, habeas petitioner was required to show that the error “had a substantial and injurious impact upon the verdict”). A petitioner proves that a fundamental “miscarriage of justice” occurred only when the petitioner affirmatively demonstrates that it is more likely than not that no reasonable jury would have found him guilty of the offenses. See Schlup v. Delo, 513 U.S. 298, 327 (1995).
C. Procedural status of Jackson's claims
Ground I. Constitutional right to present a defense
In his Petition for Writ of Habeas Corpus (Doc. 1), Jackson asserts that the clear and convincing standard of Arizona's rape shield statute violates his constitutional right to present a complete defense. Doc. 1 at 16-19. Jackson raised this claim in his opening brief on direct appeal. Doc. 1-1 at 60-62, Exh. 1 at 47-49. Thus, he has properly exhausted this claim.
Grounds II through VI. Ineffective assistance of trial counsel
Jackson acknowledges that his IAC claims have not been properly exhausted in the state courts and are procedurally defaulted. Doc. 1 at 10-14. He asserts that the ineffective assistance of the attorney he retained for purposes of the petition for review to the Arizona Court of Appeals constitutes cause for his failure to exhaust his IAC claims because counsel failed to reassert the IAC claims raised in the state PCR court by appointed counsel. Id.
When, as here, a state requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an IAC claim when PCR counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Martinez, 566 U.S. at 14. “To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id.
Jackson has failed to demonstrate that his IAC claims have merit. They are: (Ground II) adequately challenge the trial court's granting of the State's motion in limine precluding testimony about victim A.H.'s prior sexual activity; (Ground III) adequately challenge the State's cold expert on the characteristics of child sexual abuse or, alternatively, to present expert rebuttal testimony; (Ground IV) accurately rebut or defend against the testimony of the physician who had examined A.H.; (Ground V) effectively argue against the admissibility of a video of A.H.'s forensic interview; and (Ground VI) obtain an expert witness to address allegations of anal abuse and to assist in informing the state trial court about the necessity of A.H.'s medical records from a gynecological examination performed before she made the allegations against Jackson. Doc. 1 at 19, 21, 25, 28.
In his first Rule 32 petition, Jackson asserted the same IAC claims in different order. Doc. 1-1 at 122-144. As stated above, state PCR court analyzed each of Jackson's claims, concluded that he had “failed to establish both prongs of the Strickland test as required for a finding of ineffective assistance of counsel,” and dismissed the petition because it lacked any colorable claims. Doc. 1-1 at 197-202, Exh. 7. Jackson does not explain how the state PCR court's conclusions were incorrect, but merely provides factual background and conclusory allegations. Doc. 1 at 19-30.
In his petition for review to the Arizona Court of Appeals, Jackson argued that the trial court had erred in summarily rejecting his claims. Doc. 1-1 at 205-206, 209-210, 265. The Arizona Court of Appeals found that Jackson failed to raise any colorable claims and affirmed the PCR court's finding that he “had not demonstrated that [trial counsel's] conduct fell below prevailing professional norms. Doc. 1-1 at 265-66, ¶¶ 7-8. Furthermore, the state appellate court rejected the merits of Grounds II and V on direct appeal. Doc. 1-1 at 101-104, 110-112, 199-200.
Jackson has shown neither cause and prejudice, nor actual innocence, to excuse his failure to properly exhaust his claims in the state courts. Therefore, his IAC claims are technically exhausted but procedurally defaulted, Ylst, 501 U.S. at 802-05, and this Court cannot address them, Carrier, 477 U.S. at 488.
V. CONCLUSION
For these reasons, the Court denies the Petition for Writ of Habeas Corpus (Doc. 1) and dismisses it with prejudice. No certificate of appealability shall issue because the dismissal of the petition is justified by a plain procedural bar, reasonable jurists would not find the ruling debatable, and Jackson has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DISMISSING Petitioner's Petition for Writ of Habeas Corpus (Doc. 1).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number:
CV-22-00164-TUC-JGZ
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.