Jean v. Shinn

Full title: Sonny Jean, Petitioner, v. David Shinn, et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Dec 30, 2020

CV-19-00439-TUC-JGZ (EJM) (D. Ariz. Dec. 30, 2020)

Opinion

CV-19-00439-TUC-JGZ (EJM)

12-30-2020

Sonny Jean, Petitioner, v. David Shinn, et al., Respondents.

Eric J. Markovich United States Magistrate Judge

REPORT AND RECOMMENDATION

Eric J. Markovich United States Magistrate Judge

Petitioner Sonny Jean filed a pro se Petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on September 5, 2019. (Doc. 1). Petitioner raises six grounds for relief with several sub claims: (1) the trial judge abused her discretion at trial and when she denied Petitioner's Rule 32 petition for post-conviction relief, in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights; (2)(a) the State failed to meet its burden of proof to prove intent beyond a reasonable doubt, (b) trial counsel was ineffective for failing to challenge the State's failure of proof and failing to thoroughly assess the record to present evidence of Petitioner's defense, and (c) appellate counsel was ineffective for not effectively arguing this issue on appeal; (3)(a) the jury instructions were improper and failed to instruct on lesser included offenses or provide a simple assault theory, (b) trial counsel was ineffective for not providing Petitioner with the instruction information and for not objecting to the jury instructions, and (c) appellate counsel was ineffective for failing to challenge the jury instructions on appeal; (4)(a) a constructive amendment occurred through the jury instructions at trial where the indictment did not contain or specify information provided in the instructions, in violation of Petitioner's rights under the Fifth Amendment grand jury clause, (b) trial counsel was ineffective for failing to challenge the constructive amendment, and (c) appellate counsel was ineffective for failing to raise the claim on appeal; (5)(a) after the jury found the crime was dangerous, the trial court allowed the State to change “dangerous” to “repetitive” and sentenced Petitioner as a repeat offender, in violation of Petitioner's Fifth Amendment rights and Blakely v. Washington, 542 U.S. 296 (2004), and (b) trial and appellate counsel were ineffective for failing to recognize the sentencing issues; and (6) the trial jury showed partiality towards the State to obtain a conviction.

Respondents filed an Answer contending that some of Petitioner's claims are not cognizable on habeas review, that some claims are unexhausted and/or procedurally defaulted, and that the remaining claims lack merit. (Doc. 9). Respondents request that the Court deny and dismiss the PWHC with prejudice.

Petitioner filed a Reply rearguing the issues in his PWHC and alleging that his claims have merit and are not defaulted or otherwise barred from this Court's review. (Doc. 11).

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that several of Petitioner's claims fail to state a cognizable claim for habeas relief. The undersigned further finds that several of Petitioner's claims are procedurally defaulted and barred from this Court's review, and that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. Finally, as to Petitioner's claims that are cognizable, properly exhausted, and not defaulted, the undersigned finds that Petitioner has failed to show that the state court's determination of the claims was contrary to or based on an unreasonable application of clearly established federal law, or based on an unreasonable interpretation of the facts. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial, Sentencing, and Appeal

On February 12, 2015 a Pima County jury found Petitioner guilty of one count of aggravated assault with a dangerous instrument¹ and one count of aggravated assault causing serious physical injury.² (Doc. 9 Ex. E at 22). On May 11, 2015 Petitioner was sentenced to presumptive, concurrent prison terms of 11.25 years. (Doc. 9 Ex. A at 4-6).

1 The jury found that this offense was a dangerous nature offense involving a motor vehicle proven beyond a reasonable doubt.

2 The jury found that this offense involved the intentional or knowing infliction of serious physical injury.

The Arizona Court of Appeals summarized the background of Petitioner's case as follows:³

3 The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Runningeagle v. Ryan, 686 E3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).

[T]he evidence shows that on May 8, 2014, Jean shot two people, V.G. and E.V., outside a residence before running them over with a car as he “peel[ed] out” and fled the scene. V.G. died during the incident, but E.V. survived and testified at trial. An indictment charged Jean with five felony offenses related to the altercation. The jury acquitted him of three offenses but found him guilty of two crimes against E.V.: aggravated assault causing serious physical injury and aggravated assault with a dangerous instrument (a motor vehicle).

The trial court subsequently found that Jean had two historical prior felony convictions: one from Arizona and one from Florida. Over Jean's objection, the court determined that because he had been convicted of three prior felony drug offenses in Florida, the third offense there qualified as a historical prior felony conviction under Arizona law. The court then sentenced him as noted above[.]

(Doc. 1-2 at 50-51) (second alteration in original).

Following his conviction, Petitioner sought review in the Arizona COA. (Doc. 9 Ex. B). Appointed counsel filed a brief arguing that: (1) the State failed to present evidence of the mens rea that Petitioner acted recklessly; and (2) the trial court imposed an illegal sentence by sentencing Petitioner as a category three repetitive offender by improperly relying on prior convictions from Florida. (Doc. 1-2 at 59, 75-87). On May 16, 2016 the COA issued its decision affirming Petitioner's convictions and sentences. Id. at 49. The court addressed each of Petitioner's claims in detail but found no error. Id. at 51-55.

On July 15, 2016 Petitioner's counsel filed a petition for review in the Arizona Supreme Court (Doc. 1-2 at 33-47), which the court denied on November 15, 2016, id. at 31. On January 17, 2017 the COA issued its mandate. (Doc. 9 Ex. C).

B. Petition for Post-Conviction Relief

On November 17, 2016 Petitioner initiated proceedings in Pima County Superior Court for Rule 32 post-conviction relief (“PCR”).⁴ (Doc. 9 Ex. D). Appointed counsel filed a notice of completion stating that he was unable to find a meritorious issue of law or fact to raise as a basis for relief under Rule 32 and requested that Petitioner be given additional time to file a pro se petition. Id. Ex. E.

4 The Arizona Rules of Criminal Procedure were amended effective January 20, 2020. New Rule 32 applies to defendants convicted after a trial or a contested probation violation hearing, and new Rule 33 applies to pleading defendants and defendants who admitted a probation violation or had an automatic probation violation. Because Petitioner's state court actions were filed prior to January 20, 2020 and he had no state court action pending at the time the new rules went into effect, former Rule 32 applies to Petitioner's case and the Court will cite to former Rule 32 throughout this opinion. See Arizona Supreme Court Order R-19-0012, available at: https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure

On February 27, 2018⁵ Petitioner filed his pro se petition alleging the following grounds for relief: (1) did the State meet its burden of proving each element of the case beyond a reasonable doubt; trial counsel was ineffective for failing to challenge and object to the use of a dangerous instrument (jury instruction); appellate counsel was ineffective for failing to thoroughly assess the record and failing to challenge the determination of use of a dangerous instrument and the lack of evidence of the required mental state;⁶ (2) did the trial court constructively amend the grand jury indictment; trial counsel was ineffective for failing to challenge and object to the amended information in the indictment; appellate counsel was ineffective for failing to challenge the amended information in the indictment;⁷ (3) did the evidence at trial warrant the jury being provided with verdict forms for the necessarily included offenses for the aggravated assault offenses; was trial counsel ineffective for failing to challenge and object to the jury instructions and failing to request lessor included offenses to aggravated assault; appellate counsel was ineffective for not challenging the jury instructions; (4) did the trial court err in finding aggravating factors against Petitioner; trial counsel was ineffective for failing to object to the trial court's decision to hold a hearing for aggravating factors and failing to request that the jury determine the aggravators; was appellate counsel ineffective for failing to challenge the aggravating/mitigating hearing held by the trial court;⁸ (5) did the trial court err in sentencing Petitioner as a repetitive offender and allowing the State to change “dangerous” to “repetitive” after the jury found dangerousness; was trial counsel ineffective for failing to object to the change and failing to challenge the State's change; was appellate counsel ineffective in failing to challenge the change made after the jury's determination of dangerousness; and (6) did the duplicitous indictment create a real danger of a nonunanimous verdict; was trial counsel ineffective in failing to challenge the nonunanimous jury verdict; was appellate counsel ineffective in failing to thoroughly assess the record to identify and challenge the nonunanimous jury verdict. (Doc. 1-1 at 1640).

5 The petition was signed by Petitioner on February 27, 2018 and filed by the Clerk on March 23, 2018.

6 Petitioner cited his right to effective assistance of counsel as guaranteed by the 6th and 14th Amendments and Strickland v. Washington, 466 U.S. 668 (1984). (Doc. 1-1 at 20). Petitioner also cited the due process clause of the 14th Amendment's requirement that the State must prove every element of a crime beyond a reasonable doubt. Id. at 22.

7 Petitioner alleged violations of the 5th Amendment grand jury clause. (Doc. 1-1 at 28).

8 Petitioner cited the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004) in support of this argument. (Doc. 1-1 at 33).

On December 13, 2018 the trial court issued its order summarily dismissing the petition pursuant to Rule 32.6(c). (Doc. 1-1 at 4-14). In a detailed opinion, the court first set forth the factual and procedural history of Petitioner's case, including the jury instructions on aggravated assault and the dangerous nature allegation, the priors trial, and the claims raised on direct appeal. Id. at 4-5. The court then turned to Petitioner's six claims for relief arguing ineffective assistance of trial and appellate counsel. Id. at 6. As to ground one, the court noted that the crux of Petitioner's argument seemed to be that the indictment failed to specify recklessness and that the State failed to prove the essential elements of intent or knowingly beyond a reasonable doubt. Id. at 7. The court stated that Petitioner's arguments were “premised on the legally inaccurate position that [the aggravated assault offenses] cannot be committed recklessly and/or the State cannot proceed on a theory involving a reckless mental state because it is not included in the indictment.” Id. at 8. The court reasoned that trial counsel was not ineffective for failing to challenge the indictment because it put Petitioner on notice of the charges and the statutes cited in the indictment specifically included committing the offenses by recklessly causing physical injury. Id. Thus, because the indictment was not deficient and was never amended, counsel could not be ineffective for failing to challenge it. Further, because the jury instructions contained a correct statement of the law, counsel could not be ineffective for failing to object to them. The court similarly concluded that appellate counsel was not ineffective for not arguing the correct law because “it is the Petitioner who is incorrect in his repeated claims that neither of the aggravated assault counts that he was convicted of could be committed recklessly.” Id. at 9.

As to ground two, the court noted that the claim essentially repeated the arguments Petitioner made in ground one. Id. at 9. The court found that the indictment was not amended by the trial court's jury instructions; therefore, trial and appellate counsel were not ineffective for failing to object to or challenge the indictment or jury instructions that were not faulty. Id. at 9-10.

As to ground three, the court rejected Petitioner's arguments that the jury should have been instructed on the lesser included offenses of simple assault because such a charge was not supported by the evidence. Id. at 11. The court further stated that there was “no way that it can be found that the State failed to prove an element of the greater offense” and that “given the way that this case was presented . . . the record was such that the jury would have to find [Petitioner] was either guilty or not guilty. Therefore, a lesser-included offense was not appropriate.” Id. The court thus found that neither trial nor appellate counsel were ineffective for failing to request an instruction that Petitioner was not entitled to under the law. Further, appellate counsel was not ineffective for failing to challenge a legally correct instruction based on the alleged error of including the elements of simple assault in the definition of aggravated assault because “[o]ne cannot commit aggravated assault as charged in this case without first committing a simple assault as defined in A.R.S. § 13-1203.” Id.

As to ground four, the court rejected Petitioner's argument that counsel was ineffective for failing to object to the trial court finding aggravating factors. Id. at 11. The court noted that the jury found count three involved the use of a dangerous instrument and count four involved the intentional or knowing infliction of serious physical injury. At the priors trial, the court found that Petitioner had prior convictions and was on probation at the time of the incident. Prior to sentencing, the trial court and parties all agreed that, pursuant to a recent case, a jury had to find that a defendant was on probation. The court and parties thus agreed to vacate the court's finding that Petitioner was on probation and modified the sentencing range accordingly. The PCR court noted that the trial court did not make any finding of aggravating or mitigating factors on the record, and that Petitioner failed to articulate what aggravating factors were allegedly not found by the jury. Id. at 12. Therefore, because the jury and trial court properly made their findings, trial and appellate counsel were not ineffective for failing to challenge a legally correct procedure.

As to ground five, the court found that state law permits the trial court to determine whether to sentence a defendant as a dangerous or repeat offender, and that if the court sentences a defendant as a repeat offender, it does not void the jury's finding of dangerousness. Id. at 12. Thus, because Petitioner was sentenced legally, trial and appellate counsel were not ineffective for failing to challenge the trial court sentencing Petitioner as a repeat offender.

Finally, as to ground six, the court rejected Petitioner's argument that the jury verdict was not unanimous because the verdict form for count four, aggravated assault causing serious physical injury, did not require the jury to indicate what weapon or instrument caused the serious physical injury to the victim. Id. at 12-13. The court reasoned that although a finding that an offense involved intentional or knowing infliction of serious physical injury requires a unanimous verdict (and the jury must make this finding unanimously to prove that an offense was of a dangerous nature), “the State is not required to prove, nor must the jury find, precisely how the serious physical injury was inflicted.” Id. at 13. Thus, trial and appellate counsel were not ineffective for failing to object or challenge the jury instructions and verdict forms that were legally accurate. And, “even if the finding of the intentional or knowing infliction of serious physical injury dangerous nature allegation was faulty, there is no prejudice as the Petitioner was sentenced as a repetitive offender on that count.” Id.

The court concluded that Petitioner had failed to present any material issue of fact or law that would entitle him to an evidentiary hearing and had failed to state a colorable claim for relief on any basis and ordered the petition summarily dismissed pursuant to Ariz. R. Crim. P. 32.6(c). Id. at 13-14. The court further stated that Petitioner had failed to establish both prongs of the Strickland test as required for a claim of ineffective assistance of counsel (“JAC”) and thereby denied the petition. Id. at 14.

On February 15, 2019 Petitioner filed a petition for review in the Arizona COA. (Doc. 1-1 at 71). Petitioner stated that he was seeking review of the claims raised on PCR- abuse of discretion by the trial court and ineffective assistance of trial and appellate counsel-as well as abuse of discretion by the PCR court for denying his claims on PCR. (Doc. 1-2 at 1-2). Petitioner specifically alleged that Judge Godoy abused her discretion at trial by: failing to instruct the jury that it had to be unanimous on the type of simple assault that Petitioner committed, failing to instruct the jury on simple assault, and failing to instruct that simple assault was a lesser included offense of aggravated assault. Id. at 2-3. Petitioner further alleged that trial and appellate counsel were ineffective for failing to object to and raise the claim that the trial judge erroneously failed to instruct the jury. Id. at 3-4. Petitioner also alleged that the indictment submitted to the jury was duplicitous and that the jury instructions based on that indictment therefore made the jury's verdict nonunanimous, thereby violating Petitioner's right to an impartial jury. Id. at 7-10. Finally, Petitioner alleged that Judge Godoy abused her discretion by summarily dismissing the PCR petition and denying all claims presented therein. Id. at 6-18.

On May 7, 2019 the COA issued its decision granting review and denying relief. (Doc. 9 Ex. G). The court noted that although Petitioner made a general argument that the PCR court erred by denying all of the claims that he raised in his Rule 32 petition, Petitioner only challenged the denial of some of those claims in his petition for review. Id. at 39. The court thus stated that “[i]n the absence of any developed argument, we are compelled to deny relief on any claims of ineffective assistance of counsel that [Petitioner] has not specifically raised on review.” Id. (citing State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review)). The court further noted that to the extent Petitioner reasserted the claims of trial and sentencing error that he raised in the Rule 32 petition, the claims either were raised or should have been raised on direct appeal and were therefore precluded pursuant to Ariz. R. Crim. P. 32.2(a)(3). Id. at n.1. The court then addressed the claims that Petitioner did raise in his petition for review: trial counsel was ineffective for failing to challenge the trial court's use of a duplicitous and constructively amended indictment as part of the jury instructions; the instruction resulted in a nonunanimous jury verdict; trial counsel should have requested an instruction on simple assault as a lesser-included offense of aggravated assault; and appellate counsel was similarly ineffective for failing to raise these issues on appeal. Id. at 40. The court concluded that “the trial court clearly identified, addressed, and correctly resolved the claims of ineffective assistance of trial and appellate counsel [Petitioner] raises on review, and we adopt that portion of its decision.” Id. The court therefore denied Petitioner's petition for review.

Petitioner filed a motion for reconsideration, (Doc. 1-2 at 25-29), which the court denied on May 29, 2019, id. at 23.

Petitioner did not file a petition for review to the Arizona Supreme Court. On August 6, 2019 the COA issued its mandate. (Doc. 9 Ex. H).

C. Habeas Petition

On September 5, 2019 Petitioner filed his PWHC in this Court. (Doc. 1). Petitioner alleges six grounds for relief with several sub claims. The undersigned address each of these claims below. For the reasons that follow, the undersigned finds that some of Petitioner's claims fail to present a cognizable ground for habeas relief. The undersigned further finds that some of Petitioner's claims are unexhausted and procedurally defaulted, or were properly exhausted but are nonetheless procedurally defaulted, and that Petitioner has failed to show cause and prejudice or a fundamental miscarriage of justice to excuse the default of his claims. Finally, the undersigned finds that Petitioner's remaining claims lack merit and that Petitioner has failed to show that the state court's resolution of his IAC claims was an objectively unreasonable application of Strickland. Accordingly, the undersigned recommends that the District Court enter an Order denying the PWHC.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the federal court's power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by § 2254(d).

A. Exhaustion

A state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by fairly presenting them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the necessary opportunity, the prisoner must fairly present her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim.”). In Arizona, unless a prisoner has been sentenced to death, the highest court requirement is satisfied if the petitioner has presented his federal claim to the Arizona COA, either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).

A claim is fairly presented if the petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner must have “characterized the claims he raised in state proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion” if there are no state remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “This is often referred to as ‘technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy.” Thomas v. Schriro, 2009 WL 775417, at *4 (D. Ariz. March 23, 2009). “If no state remedies are currently available, a claim is technically exhausted,” but, as discussed below, the claim is procedurally defaulted and is only subject to federal habeas review in a narrow set of circumstances. Garcia v. Ryan, 2013 WL 4714370, at *8 (D. Ariz. Aug. 29, 2013).

B. Procedural Default

If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylstv. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court 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.” Id. at 735 n.1; O'Sullivan, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims).

When a petitioner has procedurally defaulted his claims, federal habeas review occurs only in limited circumstances. “A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation.” Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (internal quotations and citation omitted); Martinez v. Ryan, 566 U.S. 1, 10 (2012) (“A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”). Cause requires a showing “that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Impediments to compliance may include interference by officials that makes compliance with the state's procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available, or the procedural default was the result of ineffective assistance of counsel. Id. at 488-89. Prejudice requires “showing, not merely that the errors at his trial created a possibility of prejudice, but that they 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). The Court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991).

Additionally, a habeas petitioner “may also qualify for relief from his procedural default if he can show that the procedural default would result in a ‘fundamental miscarriage of justice.'” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule is limited to habeas petitioners who can establish that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327; see also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028.

C. Adjudication on the Merits and § 2254(d)

The Ninth Circuit has held that “a state has ‘adjudicated' a petitioner's constitutional claim ‘on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

If a habeas petition includes a claim that was properly exhausted, has not been procedurally defaulted, and was adjudicated on the merits in state court proceedings, federal court review is limited by § 2254(d). Under § 2254(d)(1), a federal court cannot grant habeas relief unless the petitioner shows: (1) that the state court's decision was contrary to federal law as clearly established in the holdings of the United States Supreme Court at the time of the state court decision, Greene v. Fisher, 565 U.S. 34, 38 (2011); (2) that it “involved an unreasonable application of' such law, § 2254(d)(1); or (3) that it “was based on an unreasonable determination of the facts” in light of the record before the state court, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86 (2011). This standard is “difficult to meet.” Richter, 562 U.S. at 102. It is also a “highly deferential standard for evaluating state court rulings . . . which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal quotations and citation omitted).

III. ANALYSIS

A. Non-Cognizable Claims

Habeas is not the remedy for every legal error-federal habeas relief is only available to state prisoners to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Habeas petitioners must plead their claims with particularity and must specify all grounds for relief and the facts supporting those grounds. Rule 2(c), Rules Governing § 2254 cases; Mayle v. Felix, 545 U.S. 644, 656 (2005). Further, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“federal habeas corpus relief does not lie for errors of state law”). This Court presumes that the state court properly applied the law, see, e.g., Holland v. Jackson, 542 U.S. 649, 655 (2004); Woodfordv. Visciotti, 537 U.S. 19, 24 (2002) (state court decisions must “be given the benefit of the doubt”), and gives deference to the trier of fact, Wright v. West, 505 U.S. 277, 296 (1992); Sumner v. Mata, 455 U.S. 591 (1982). A petitioner also cannot transform his state law claims into federal ones merely by asserting a violation of due process. Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“‘A mere error of state law . . . is not a denial of due process.'” (quoting Engle, 456 U.S. at 121 n.21)); see also Polandv. Stewart, 169 F.3d 573, 584 (9th Cir. 1999); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Relatedly, a petitioner cannot recast his state law claim as a federal constitutional challenge to the sufficiency of the evidence. Curtis v. Montgomery, 552 F.3d 578, 582 (7th Cir. 2009). However, violations of state law are cognizable on habeas if the state court's application of state law was so arbitrary or capricious as to constitute an independent due process violation that rendered the trial fundamentally unfair. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984); Lyons v. Brady, 666 F.3d 51, 55-56 (1st Cir. 2012).

Here, the undersigned finds that some of Petitioner's claims are based on the state court's determination of a state law issue, and habeas relief does not lie for errors of state law. The undersigned further finds that some of Petitioner's claims fail to allege a federal, constitutional violation and thus fail to assert a cognizable basis for federal habeas relief.

i. Ground One

Petitioner alleges that Judge Teresa Godoy abused her discretion at trial and when she denied Petitioner's claims on PCR, in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights. (Doc. 1 at 6). In support of this claim, Petitioner alleges that his Rule 32 petition asserted “numerous plain errors” of abuse of discretion by the trial court and IAC at trial and on direct appeal, but that the PCR court denied and summarily dismissed his petition.

This argument is based, in part, on the state court's denial of a PCR petition under Ariz. R. Crim. P. 32 and thus concerns a state law issue not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68. Habeas is not the remedy for every legal error, nor is it a forum for petitioners to argue alleged errors in the state PCR process. See Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (“a petition alleging errors in the state postconviction review process is not addressable through habeas corpus proceedings”). Further, Petitioner's scattershot citation to the Fifth, Sixth, and Fourteenth Amendments, devoid of any articulated federal legal theory, is insufficient to present a claim for habeas relief, and Petitioner cannot transform his state law claims into federal ones merely by asserting a violation of due process. See Rule 2(c), Rules Governing § 2254 cases; Rivera, 556 U.S. at 158; Mayle, 545 U.S. at 646; see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (a petitioner's conclusory suggestion that a constitutional right has been violated falls “far short of stating a valid claim of constitutional violation” sufficient to provide a basis for habeas relief). Thus, the undersigned finds that Petitioner has failed to state a cognizable claim for relief in Ground One.

ii. Ground Two (a)

Petitioner alleges that the State failed to meet its burden of proof because it failed to prove intent beyond a reasonable doubt. (Doc. 1 at 7).⁹ Sub claim (a) does not allege a violation of the United States Constitution, federal laws, or treaties of the United States, nor was the claim presented to the state court as a federal, constitutional claim. Further, a petitioner cannot recast his state law claim as a federal constitutional challenge to the sufficiency of the evidence. Curtis, 552 F.3d at 582. “Federal courts are not forums in which to relitigate state trials[,]” Barefoot v. Estelle, 463 U.S. 880, 887 (1983), and “it is well settled that upon habeas corpus the court will not weigh the evidence.” Hyde v. Shine, 199 U.S. 62, 84 (1905); see also Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000) (even where evidence is “almost entirely circumstantial and relatively weak,” it may be sufficient to support a conviction); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (“Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.”); United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir. 1986) (the government is entitled to all reasonable inferences that may be drawn from the evidence). Accordingly, the undersigned finds that Ground Two (a) is not cognizable on habeas review. iii. Ground Three (a) Petitioner argues that the jury instructions were improper and failed to instruct on lesser included offenses or provide a simple assault theory that the jury could convict on. (Doc. 1 at 8).¹⁰

9 On direct appeal, Petitioner argued that the State failed to prove mens rea because there was no evidence put forth by the State that Petitioner had acted recklessly. (Doc. 1-2 at 7578). Petitioner argued this claim to the COA as a state law, sufficiency of the evidence issue, and that is how the court addressed the claim in its decision. Id. at 51-52. In affirming Petitioner's convictions and sentences, the COA found that there was substantial evidence presented at trial such that the jury could find Petitioner acted recklessly by consciously disregarding a substantial and unjustifiable risk of injuring another person. Id. at 51. The court further stated that to the extent reasonable people could fairly disagree about whether the evidence established the culpable mental state, the evidence was substantial and the COA does not reweigh the evidence on appeal. Id. at 52. As part of his ground one claim in the Rule 32 petition, Petitioner alleged that the State failed to meet its burden to prove each element of the case beyond a reasonable doubt. The trial court noted that the crux of Petitioner's argument seemed to be that the indictment failed to specify recklessness and that the State failed to prove the essential elements of intent or knowingly beyond a reasonable doubt. (Doc. 1-1 at 7). The court stated that Petitioner's arguments were “premised on the legally inaccurate position that [the aggravated assault offenses] cannot be committed recklessly and/or the State cannot proceed on a theory involving a reckless mental state because it is not included in the indictment.” Id. at 8. The court addressed Petitioner's IAC claims in relation to Petitioner's argument that the State had failed to prove recklessness, but the court did not address a stand-alone, sufficiency of the evidence claim. In his petition for review to the Arizona COA, Petitioner did not allege a claim that the State failed to prove every element of the crime beyond a reasonable doubt. Thus, even if Petitioner's habeas claim in Ground Two (a) were cognizable, the claim would nevertheless be unexhausted because Petitioner failed to present it to the COA in a procedurally appropriate manner.

10 In addressing Petitioner's ground three claim in his PCR petition, the trial court rejected Petitioner's arguments that the jury should have been instructed on the lesser included offense of simple assault because such a charge was not supported by the evidence. (Doc. 1-1 at 11). The court further stated that there was “no way that it can be found that the State failed to prove an element of the greater offense” and that “given the way that this case was presented . . . the record was such that the jury would have to find [Petitioner] was either guilty or not guilty. Therefore, a lesser-included offense was not appropriate.” Id.

Whether the trial court adequately instructed the jury on the applicable state law is not a question of federal law. See Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“instructions that contain errors of state law may not form the basis for federal habeas relief”); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error “does not alone raise a ground cognizable in a federal habeas corpus proceeding”); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983) (“Insofar as Gutierrez simply challenges the correctness of the state evidentiary rulings and the jury instructions, he has alleged no deprivation of federal rights.”). Thus, the undersigned finds that Ground Three (a) does not present a cognizable claim for habeas relief.

iv. Ground Six

Petitioner alleges that the trial jury showed partiality towards the State to obtain a conviction. (Doc. 1 at 14). In support of this claim, Petitioner contends that the State and defense counsel agreed to omit material evidence that played a crucial role in Petitioner's case. Id. Petitioner further states that the jury must have been confused or chose to find Petitioner guilty of something because the verdict forms contained errors; specifically, the jury found Petitioner used his vehicle as a dangerous instrument but it was not proven beyond a reasonable doubt, and the verdict forms failed to list recklessness as an element. Id. at 14-15.¹¹ Petitioner contends that because his trial testimony that he acted in self- defense was the only evidence of intent, the jury was therefore impartial when it found Petitioner guilty of committing aggravated assault with the requisite intent. Id. at 15.

11 Petitioner presented a related claim, but not the same claim, on PCR, alleging that the duplicitous indictment created a real danger of a nonunanimous verdict and that counsel were ineffective for failing to challenge the nonunanimous verdict. In denying PCR, the trial court rejected Petitioner's argument that the jury verdict was not unanimous because the verdict form for count four, aggravated assault causing serious physical injury, did not require the jury to indicate what weapon or instrument caused the serious physical injury to the victim. (Doc. 1-1 at 12-13). The court reasoned that although a finding that an offense involved intentional or knowing infliction of serious physical injury requires a unanimous verdict (and the jury must make this finding unanimously to prove that an offense was of a dangerous nature), “the State is not required to prove, nor must the jury find, precisely how the serious physical injury was inflicted.” Id at 13. Thus, trial and appellate counsel were not ineffective for failing to challenge or object to the jury instructions and verdict forms that were legally accurate. And, ‘“even if the finding of the intentional or knowing infliction of serious physical injury dangerous nature allegation was faulty, there is no prejudice as the Petitioner was sentenced as a repetitive offender on that count.” Id. In his petition for review to the COA, Petitioner argued that the indictment submitted to the jury was duplicitous and that the jury instructions based on that indictment therefore made the jury's verdict nonunanimous, thereby violating Petitioner's right to an impartial jury. (Doc. 1-2 at 7-10). In addressing this argument in relation to Petitioner's claim that trial and appellate counsel were ineffective for failing to challenge the jury instructions, the COA concluded that “the trial court clearly identified, addressed, and correctly resolved the claims of ineffective assistance of trial and appellate counsel [Petitioner] raises on review, and we adopt that portion of its decision.” (Doc. 9 Ex. G at 40).

This claim fails to allege a specific, federal constitutional violation, and is essentially a restatement of Petitioner's argument that the State failed to prove recklessness. The undersigned is mindful that the Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) (“judges have no obligation to act as counsel or paralegal to pro se litigants”). Accordingly, the undersigned finds that Ground Six is not cognizable on federal habeas review.¹²

12 Where a petitioner fails to allege a deprivation of a federal right, it is unnecessary to determine whether he has satisfied the exhaustion requirement; the claim is simply dismissed as not cognizable. Engle, 456 U.S. at 121 n.19. (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts.).

B. Unexhausted and Procedurally Defaulted Claims

i. Ground Two (b)

Petitioner alleges that trial counsel was ineffective for failing to challenge the State's failure to prove recklessness beyond a reasonable doubt and that counsel failed to thoroughly assess the record to provide the jury with convincing evidence of Petitioner's defense. (Doc. 1 at 7).

Claims for IAC are properly raised in a Rule 32 petition for PCR. Petitioner raised several claims of IAC in his Rule 32 petition, alleging that trial counsel was ineffective for failing to challenge and object to the use of a dangerous instrument (jury determination), failing to challenge and object to the amended information in the indictment, failing to challenge and object to the jury instructions and failing to request lessor included offenses to aggravated assault, failing to object to the trial court's decision to hold a hearing for aggravating factors and failing to request that the jury determine the aggravators, failing to object to the trial court allowing the State to change “dangerous” to “repetitive” after the jury found dangerousness, and failing to challenge the nonunanimous jury verdict. (Doc. 1-1 at 19-39). The undersigned submits that the IAC claims raised on PCR are distinct from the claim that Petitioner now makes in Ground Two (b)-that trial counsel was ineffective for failing to challenge the State's failure to prove recklessness beyond a reasonable doubt and failing to put forth convincing evidence of Petitioner's defense. See Date, 619 F.Supp.2d at 788 (Asserting an IAC claim “based on one set of facts [presented to the state courts], does not exhaust other claims of ineffective assistance of counsel based on different facts” that were not presented to the state courts.); see also Moormann, 426 F.3d at 1056-57 (new allegations of IAC not previously raised before the state court cannot be addressed on habeas review); Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001) (a petitioner fairly presents his claim in state court only if the state court claim described both the same set of operative facts and the applicable law).

In rejecting Petitioner's claim on PCR that trial counsel was ineffective for failing to challenge and object to the use of a dangerous instrument (jury determination), the trial court noted that the crux of Petitioner's argument seemed to be that the indictment failed to specify recklessness and that the State failed to prove the essential elements of intent or knowingly beyond a reasonable doubt. (Doc. 1-1 at 7). The court stated that Petitioner's arguments were “premised on the legally inaccurate position that [the aggravated assault offenses] cannot be committed recklessly and/or the State cannot proceed on a theory involving a reckless mental state because it is not included in the indictment.” Id. at 8. The court reasoned that trial counsel was not ineffective for failing to challenge the indictment because it put Petitioner on notice of the charges and the statutes cited in the indictment specifically included committing the offenses by recklessly causing physical injury. Id. Thus, because the indictment was not deficient and was never amended, counsel could not be ineffective for failing to challenge it. Id. Further, because the jury instructions contained a correct statement of the law, counsel could not be ineffective for failing to object to them. Id.

Assuming Petitioner did properly present his Ground Two (b) claim to the trial court on PCR, the claim is nevertheless unexhausted because Petitioner failed to properly present it to the COA in his petition for review. Exhaustion requires that a petitioner fairly present each claim to the state court in a procedurally appropriate manner. Baldwin, 541 U.S. at 29. “[A] petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial post-conviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). The COA is not required to address a claim that the petitioner fails to raise. See Ariz. R. Crim. P. 32.16(c)(4).¹³

13 The COA noted that although Petitioner made a general argument that the PCR court erred by denying all of the claims that he raised in his Rule 32 petition, Petitioner only challenged the denial of some of those claims in his petition for review. (Doc. 9 Ex. G at 39). The court thus stated that “[i]n the absence of any developed argument, we are compelled to deny relief on any claims of ineffective assistance of counsel that [Petitioner] has not specifically raised on review.” Id. (citing State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review)).

Accordingly, the claim that trial counsel was ineffective for failing to challenge the State's failure to prove recklessness beyond a reasonable doubt is unexhausted because Petitioner failed to properly present this portion of his federal claim to the COA.¹⁴ See Ariz. R. Crim. P. 32.16(c)(4) (“A party's failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue.”); Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004) (To properly exhaust a claim, a petitioner must “give the Arizona courts a ‘fair opportunity' to act on his federal [] claim before presenting it to the federal courts.”); Date v. Schriro, 619 F.Supp.2d 736, 786 (D. Ariz. 2008) (IAC claims unexhausted where petitioner raised claims in Rule 32 petition but failed to raise claims in petition for review to Arizona COA); Crowell, 483 F.Supp. at 931-33.

14 As to Petitioner's claim that counsel failed to thoroughly assess the record to provide the jury with convincing evidence of Petitioner's defense, Petitioner provides no further explanation or elaboration on this issue. This kind of bare assertion, devoid of any explanation or federal legal theory, falls far below the threshold to state a cognizable claim for habeas relief. See Rule 2(c), Rules Governing § 2254 cases; Mayle, 545 U.S. at 656; James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).

ii. Ground Two (c)

Petitioner alleges appellate counsel was ineffective for not effectively arguing the State's failure of proof on appeal. (Doc. 1 at 7). Petitioner raised a similar claim in his Rule 32 petition, alleging that appellate counsel was ineffective for failing to challenge the lack of evidence of the required mental state. (Doc. 1-1 at 19). In denying PCR, the trial court noted that appellate counsel made arguments related to Petitioner's mental state, the sufficiency of proof as to Petitioner's mental state, and the sufficiency of the evidence. Id. at 9. The court rejected Petitioner's argument that appellate counsel was ineffective for not arguing the correct law, stating that “it is the Petitioner who is incorrect in his repeated claims that neither of the aggravated assault counts that he was convicted of could be committed recklessly.” Id. The court therefore concluded that “[a]ppellate counsel was not ineffective for failing to argue something that is legally incorrect.” Id.

Although the undersigned finds that Petitioner did properly present his Ground Two (c) claim to the trial court on PCR, the claim is nevertheless unexhausted because Petitioner failed to present it to the COA in his petition for review.¹⁵ Accordingly, Petitioner's claim that appellate counsel was ineffective for not effectively arguing the State's failure of proof on appeal is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Ariz. R. Crim. P. 32.16(c)(4); Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; Date, 619 F.Supp.2d at 786; Crowell, 483 F.Supp. at 931-33. ... iii. Ground Four (a)

15 See supra note 13.

Petitioner argues that a constructive amendment occurred through the jury instructions at trial where the indictment did not contain or specify information provided in the instructions, in violation of Petitioner's rights under the Fifth Amendment grand jury clause. (Doc. 1 at 9). Petitioner appears to argue that while he was charged with aggravated assault, the jury instructions included elements of simple assault, but the court did not instruct the jury on a simple assault theory and the State did not prove Petitioner committed simple assault. Id.

On PCR, Petitioner alleged a claim that the trial court constructively amended the indictment, citing the Fifth Amendment grand jury clause. (Doc. 1-1 at 28). Petitioner also alleged a separate claim that the jury should have been given verdict forms for the lesser included offenses for aggravated assault, but did not argue this claim as a federal, constitutional issue. Id. at 31. “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); see also Grey v. Netherland, 518 U.S. 152, 162-63 (1996) (a petitioner does not satisfy the exhaustion requirement “by presenting the state courts only with the facts necessary to state a claim for relief[;]” the specific constitutional right allegedly violated must also be identified); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (“in order to fulfill exhaustion requirements, a petitioner must present to the state courts the substantial equivalent of the claim presented in federal court”). Further, as noted above, whether the trial court adequately instructed the jury on the applicable state law is not a cognizable basis for federal habeas relief. See Gilmore, 508 U.S. at 342; Dunckhurst, 859 F.2d at 114; Gutierrez, 695 F.2d at 1197. Thus, to the extent that Ground Four (a) realleges Petitioner's claim that the trial court failed to properly instruct the jury, the claim is unexhausted and not cognizable on habeas review.

In denying Petitioner's claims on PCR, the trial court found that the indictment was not constructively amended by the trial court's jury instructions. (Doc. 1-1 at 9). The court noted that Petitioner was “operating under the mistaken belief that neither of the aggravated assault offenses can be committed recklessly[,]” but that “[t]he specific statutes cited in the indictment for Count 3 and Count 4 both include committing the separate offenses by recklessly causing physical injury.” Id. at 8; see also id. at 9 (“Aggravated assault with a dangerous instrument and aggravated assault with causing serious physical injury both require that the State prove that the Petitioner committed an assault under any of the three enumerated ways set forth in A.R.S. § 13-1203(A)(1), (2), or (3) . . . .”).

In his petition for review to the Arizona COA, Petitioner did not allege a claim that the indictment was constructively amended through the jury instructions. Petitioner's claim in Ground Four (a) is therefore unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Ariz. R. Crim. P. 32.16(c)(4); Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; Date, 619 F.Supp.2d at 786; Crowell, 483 F.Supp. at 931-33.¹⁶

16 In denying the petition for review, the COA stated that to the extent Petitioner reasserted the claims of trial and sentencing error that he raised in the Rule 32 petition, the claims either were raised or should have been raised on direct appeal and were therefore precluded by Ariz. R. Crim. P. 32.2(a)(3). (Doc. 9 Ex. G at 39 n.1). Thus, even if Petitioner had properly exhausted his claim in Ground Four (a), the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. See Ariz. R. Crim. P. 32.2(a)(3) (a defendant is precluded from relief under Rule 32.1 based on any ground waived at trial or on appeal).

iv. Ground Four (b) and (c)

In Ground Four (b) Petitioner alleges trial counsel was ineffective for failing to challenge the constructive amendment to the indictment. (Doc. 1 at 9). In Ground Four (c) Petitioner alleges appellate counsel was ineffective for failing to raise the constructive amendment claim on appeal. Id. Petitioner raised these same claims in his Rule 32 petition, alleging that trial and appellate counsel were ineffective for failing to challenge the amended information in the indictment. (Doc. 1-1 at 28).

In denying Petitioner's Rule 32 petition, the PCR court found that the indictment was not constructively amended by the trial court's jury instructions. (Doc. 1-1 at 9). The court noted that Petitioner was “operating under the mistaken belief that neither of the aggravated assault offenses can be committed recklessly[,]” but that “[t]he specific statutes cited in the indictment for Count 3 and Count 4 both include committing the separate offenses by recklessly causing physical injury.” Id. at 8. The court therefore concluded that trial and appellate counsel were not ineffective for failing to object to or challenge the indictment or jury instructions that were not faulty. Id. at 9-10.

In his petition for review to the Arizona COA, Petitioner did not allege a claim that trial and appellate counsel were ineffective for failing to challenge the constructive amendment to the indictment.¹⁷ Petitioner's claims in Ground Four (b) and (c) are therefore unexhausted because Petitioner failed to properly present the claims to the state courts in a procedurally appropriate manner. See Ariz. R. Crim. P. 32.16(c)(4); Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; Date, 619 F.Supp.2d at 786; Crowell, 483 F.Supp. at 93133.¹⁸

17 See supra note 13.

18 Petitioner's pleadings are not a model of clarity, and the undersigned does not find that Petitioner presented Ground Four (b) or (c) to the COA in his petition for review. However, to the extent that the COA did find that Petitioner raised claims regarding counsel's failure to challenge the trial court's use of a constructively amended indictment, the COA found that “the trial court clearly identified, addressed, and correctly resolved the claims of ineffective assistance of trial and appellate counsel [Petitioner] raises on review, and we adopt that portion of its decision.” (Doc. 9 Ex. G at 40). And, as discussed in Section D below, Petitioner has failed to meet his burden to show that the state court's resolution of his IAC claims was contrary to, or involved an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts.

v. Ground Five (a)

Petitioner alleges that after the jury found the crime was dangerous, the trial court allowed the State to change “dangerous” to “repetitive” to obtain a greater sentence, in violation of Petitioner's Fifth Amendment rights and Blakely v. Washington, 542 U.S. 296 (2004).¹⁹ (Doc. 1 at 12).

19 To the extent that this argument is premised on whether the trial court's sentences complied with state statutes, the claim concerns a state law issue not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68; Rivera, 556 U.S. at 158; Mayle, 545 U.S. at 646; Jones, 66 F.3d at 205.

Petitioner raised a similar claim in his Rule 32 petition, arguing that the trial court erred in sentencing Petitioner as a repetitive offender and allowing the State to change “dangerous” to “repetitive” after the jury found dangerousness. (Doc. 1-1 at 35). However, Petitioner did not allege a federal, constitutional basis for the claim on PCR; rather, Petitioner argued that his sentence was not in accordance with state law and statutes. Id.; see Grey, 518 U.S. at 162-63 (a petitioner does not satisfy the exhaustion requirement “by presenting the state courts only with the facts necessary to state a claim for relief[;]” the specific constitutional right allegedly violated must also be identified).²⁰ Further, Petitioner failed to raise this claim in his petition for review to the Arizona COA.

20 As this Court has explained:

Fair presentation requires a petitioner to describe both the operative facts and the federal legal theory to the state courts. Reese, 541 U.S. at 28, 124 S.Ct. 1347. It is not enough that all of the facts necessary to support the federal claim were before the state court or that a “somewhat similar” state law claim was raised. Reese, 541 U.S. at 28, 124 S.Ct. 1347 (stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim). Rather, the habeas petitioner must cite in state court to the specific constitutional guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Similarly, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (insufficient for prisoner to have made “a general appeal to a constitutional guarantee,” such as a naked reference to “due process,” or to a “constitutional error” or a “fair trial”). Likewise, a mere reference to the “Constitution of the United States” does not preserve a federal claim. Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Even if the basis of a federal claim is “self-evident” or if the claim would be decided “on the same considerations” under state or federal law, the petitioner must make the federal nature of the claim “explicit either by citing federal law or the decision of the federal courts . . . .” Lyons, 232 F.3d at 668. A state prisoner does not fairly present a claim to the state court if the court must read beyond the pleadings filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27, 124 S.Ct. 1347.

Date, 619 F.Supp.2d at 764-65; see also Duncan v. Henry, 513 U.S. 364, 366 (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.”).

Accordingly, Petitioner's claim in Ground Five (a) is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Ariz. R. Crim. P. 32.16(c)(4); Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; Date, 619 F.Supp.2d at 786; Crowell, 483 F.Supp. at 931-33; Tamalini, 249 F.3d at 898.²¹

21 In denying the petition for review, the COA stated that to the extent Petitioner reasserted the claims of trial and sentencing error that he raised in the Rule 32 petition, the claims either were raised or should have been raised on direct appeal and were therefore precluded by Ariz. R. Crim. P. 32.2(a)(3). (Doc. 9 Ex. G at 39 n.1). Thus, even if Petitioner had properly exhausted his claim in Ground Five (a), the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. See Ariz. R. Crim. P. 32.2(a)(3) (a defendant is precluded from relief under Rule 32.1 based on any ground waived at trial or on appeal).

vi. Ground Five (b)

Petitioner alleges that trial and appellate counsel were ineffective for failing to recognize the sentencing issues-that after the jury found “dangerousness,” the trial court allowed the State to change “dangerous” to “repetitive” to obtain a greater a sentence, and the court sentenced Petitioner as a repetitive offender. (Doc. 1 at 12).

In his Rule 32 petition, Petitioner argued trial counsel was ineffective for failing to object to the change of “dangerous” to “repetitive,” and failing to challenge the State making this change. (Doc. 1-1 at 35). Petitioner also alleged that appellate counsel was ineffective for failing to challenge the change made after the jury's determination of dangerousness. Id.

In his petition for review to the Arizona COA, Petitioner did not allege a claim that trial and appellate counsel were ineffective for failing to challenge the change of “dangerous” to “repetitive.”²² Petitioner's claims in Ground Five (b) are therefore unexhausted because Petitioner failed to properly present the claims to the state courts in a procedurally appropriate manner. See Ariz. R. Crim. P. 32.16(c)(4); Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; Date, 619 F.Supp.2d at 786; Crowell, 483 F.Supp. at 93133.

22 See supra note 13.

C. Effect of Procedural Bar

Claims not previously presented to the state courts on either direct appeal or collateral review are generally barred from federal review because any attempt to return to state court to present them would be futile unless the claims fit into a narrow range of exceptions. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Because these rules have been found to be consistently and regularly followed, and because they are independent of federal law, either their specific application to a claim by an Arizona court, or their operation to preclude a return to state court to exhaust a claim, will procedurally bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Rule 32 is strictly followed); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).

As explained above, several of Petitioner's claims are unexhausted because Petitioner failed to properly present them to the state courts in a procedurally appropriate manner. Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent Petitioner from now exhausting those claims in state court. Accordingly, the claims are both technically exhausted and procedurally defaulted and thus not properly before this Court for review. See Crowell, 483 F.Supp.2d at 931-33; Coleman, 501 U.S. at 732, 735 n.1; Garcia, 2013 WL 4714370 at * 8. Additionally, some of Petitioner's claims were actually raised in state court and thus properly exhausted, but are nonetheless procedurally barred from this Court's review because the state court applied a plain procedural bar and found the claims were precluded as waived by Rule 32.2(a)(3). See Coleman, 501 U.S. at 729-30.

A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). Both cause and prejudice must be shown to excuse a procedural default, but the Court is not required to examine the existence of prejudice if the petitioner fails to establish cause. Engle, 456 U.S. at 134 n.43; Thomas, 945 F.2d at 1123 n.10.

Here, Petitioner has failed to show cause for, or prejudice arising from, the procedural default of his claims, and the Court can glean none from the record before it. See Martinez, 566 U.S. at 10; Murray, 477 U.S. at 488. There was no objective factor external to Petitioner's defense that impeded his efforts to comply with the state's procedural rules; Petitioner simply failed to raise the specific claims he now attempts to raise on habeas to the state courts in a timely and procedurally appropriate manner. Petitioner does not allege any interference by officials that made compliance with the state's procedural rules impracticable and has not shown that the factual or legal basis for the claims was not reasonably available. See Murray, 477 U.S. at 488-489.

To the extent that Petitioner argues that the procedural default was the result of ineffective assistance of appellate counsel, this argument fails. Criminal defendants have a constitutional right to the effective assistance of counsel at trial and for all direct appeals that the state grants as a matter of right. Evitts v. Lucey, 469 U.S. 387, 393 (1985). Thus, “[a]ttorney error that constitutes ineffective assistance of counsel is cause [to excuse a procedural default].” Coleman, 501 U.S. at 753-754. However, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 486; see also Coleman, 501 U.S. at 753 (“Attorney ignorance or inadvertence is not ‘cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.'” (citation omitted)). For attorney error to constitute “cause,” it must rise to the level of a constitutional violation of the right to counsel under Strickland. Murray, 477 U.S. at 488. Thus, whether the error occurs at trial or on appeal, “cause for a procedural default . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Id. at 492.

Here, appellate counsel reviewed the record to determine whether there were any viable claims for appeal and chose to present two issues: the State failed to meet its burden to prove mens rea beyond a reasonable doubt, and the trial court imposed an illegal sentence by sentencing Petitioner as a category three offender by improperly relying on prior convictions from Florida. Although Petitioner alleges appellate counsel deemed it unnecessary to raise some claims and therefore did not argue the claims effectively, an “attorney need not advance every argument, regardless of merit, urged by the appellant.” Evitts, 469 U.S. at 394; see Gustave v. United States, 627 F.2d 901, 904 (1980) (“Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation.”); see also Sexton, 679 F.3d at 1157 (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.” (internal citation omitted)). Counsel is presumed to have acted reasonably, and appellate counsel likely evaluated the merits of additional claims and made a tactical decision not to pursue them. As is discussed further in Section D below, Petitioner has failed to show that appellate counsel was constitutionally ineffective and thus any alleged error by appellate counsel cannot serve as cause to excuse the procedural default of Petitioner's claims.

Finally, Petitioner's status as an inmate and lack of legal knowledge do not constitute cause. See Lewis v. Casey, 518 U.S. 343, 355 (1996) (The right of access to the courts “does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.”); Thomas, 945 F.2d at 1123 (alleged inadequate prison library and legal assistance procedures did not establish cause where petitioner “failed to demonstrate that he, himself, had been denied access to the library” and petitioner's filing of pro se pleadings reflected adequate access to and use of legal materials); 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); Hughes, 800 F.2d at 908 (petitioner's pro se status and ignorance of the law do not satisfy the cause standard).

While the standard for cause and prejudice is one of discretion and is intended to be flexible, it must yield to exceptional circumstances only. Hughes, 800 F.2d at 909. Petitioner bears the responsibility for failing to raise his claims in a timely, properly filed state proceeding and properly exhausting those claims to the Arizona COA. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”). Accordingly, because Petitioner has failed to establish cause to excuse the procedural default of his claims, the Court need not examine the merits of Petitioner's defaulted claims or the purported prejudice.²³

23 Petitioner does not argue a fundamental miscarriage of justice to excuse the procedural default of his claims. A federal court may review the merits of a procedurally defaulted habeas claim if the petitioner demonstrates that failure to consider the merits of his claim will result in a “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. A “fundamental miscarriage of justice” occurs when a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. Actual innocence thus serves as a “gateway” for a petitioner to have procedurally or time-barred constitutional claims reviewed. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Smith v. Baldwin, 510 F.3d 1127, 1139-49 (9th Cir. 2007) (en banc) (A claim of innocence under Schlup is “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”). In order to pass through the Schlup gateway, a petitioner's case must be “truly extraordinary,” 513 U.S. at 327, and a “tenable actual-innocence gateway” claim will not be found unless the petitioner “persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 329). A showing that a reasonable doubt exists in light of the new evidence is not sufficient; rather, the petitioner must show that “it is more likely than not that no reasonable juror would have found [petitioner] guilty beyond a reasonable doubt.” Schlup, 513 U.S at 327. Thus, the “precedents holding that a habeas petitioner satisfied [the Schlup standard] have typically involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1095-96 (9th Cir. 2013). In the present case, while Petitioner challenges the adequacy of the procedures that led to his convictions and sentences, he does not point to evidence of actual, factual innocence. Thus, the undersigned finds that Petitioner has not shown that there is new evidence of actual innocence such that review of his procedurally-barred claims is warranted under Schlup.

D. Merits

Petitioner's remaining claims allege ineffective assistance of trial counsel and appellate counsel. ... i. Legal Standard

The Supreme Court established a two-part test for evaluating IAC claims in Strickland v. Washington, 466 U.S. 668 (1984). To establish that counsel was ineffective under Strickland, Petitioner must show: (1) that trial counsel's performance was deficient; and (2) that trial counsel's deficient performance prejudiced Petitioner's defense. Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (citing Strickland, 466 U.S. at 688, 694). To establish deficient performance, Petitioner must show that “counsel made errors so serious . . . that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” Strickland, 466 U.S. at 687-688. The relevant inquiry is not what defense counsel could have done, but rather whether the decisions made by defense counsel were reasonable. Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). In considering this factor, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690.

The Ninth Circuit “h[as] explained that ‘[r]eview of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation.'” Ortiz, 149 F.3d at 932 (quoting Hensley v. Crist, 67 F.3d 181, 184 (9th Cir. 1995)). “The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances[.]” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Additionally, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Acts or omissions that “might be considered sound trial strategy” do not constitute ineffective assistance. Id.

Even where trial counsel's performance is deficient, a petitioner must also establish prejudice in order to prevail on an IAC claim. To establish prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Under the prejudice factor, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. Further, because failure to make the required showing of either deficient performance or prejudice defeats the claim, the court need not address both factors where one is lacking. Strickland, 466 U.S. at 697-700; LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the petitioner cannot establish one or the other).

Additionally, under the AEDPA, the federal court's review of the state court's decision on an IAC claim is subject to another level of deference. Bell v. Cone, 535 U.S. 685, 698-699 (2002). This creates a “doubly deferential” review standard in which a habeas petitioner must show not only that there was a violation of Strickland, but also that the state court's resolution of the claim was more than wrong, it was an objectively unreasonable application of Strickland. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); Bell, 535 U.S. at 698-99; Woodford, 537 U.S. at 25; Cullen v. Pinholster, 563 U.S. 170, 171 (2011) (federal habeas court's review of state court's decision on ineffective assistance of counsel claim is “doubly deferential”). Thus, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 105.

ii. Ground Three (b) and (c)

Petitioner's claims in Ground Three allege that the jury instructions were improper and failed to instruct on lesser included offenses or provide a simple assault theory that the jury could convict on. (Doc. 1 at 8). In sub claim (b) Petitioner alleges trial counsel was ineffective for not providing Petitioner with the instruction information and for not objecting to the jury instructions. In sub claim (c) Petitioner alleges appellate counsel was ineffective for failing to challenge the jury instructions on appeal.

Petitioner raised substantially the same claims in his Rule 32 petition that he now alleges on habeas, arguing that trial and appellate counsel were ineffective for failing to challenge the jury instructions and that trial counsel should have requested an instruction on the lessor included offenses to aggravated assault. (Doc. 1-1 at 31). In denying PCR, the trial court explained that pursuant to Arizona law, “a defendant is only entitled to a lesser-included offense instruction if there is evidence from which the jury could convict on the lesser offense and find that the state failed to prove an element of the greater offense.” Id. at 10. “[T]he trial court need not give instructions on all offenses theoretically included in every charged offense, but need only give instructions on lesser included offenses that are actually supported by the evidence presented at trial.” Id. (internal quotations and citation omitted). Further, where “the record is such that the defendant is either guilty of the crime charged or not guilty, the trial court should refuse to give the lesser-included instruction.” Id. The court rejected Petitioner's arguments that the jury should have been instructed on the lesser included offense of simple assault because such a charge was not supported by the evidence. Id. at 11. The court stated that there was “no way that it can be found that the State failed to prove an element of the greater offense” and that “given the way that this case was presented . . . the record was such that the jury would have to find [Petitioner] was either guilty or not guilty. Therefore, a lesser-included offense was not appropriate.” Id. The court concluded that trial counsel was not ineffective for failing to request an instruction that Petitioner was not entitled to under the law, nor was appellate counsel ineffective for failing to challenge the failure to instruct on a lesser that was not supported by the facts or the law. Id. Finally, appellate counsel was not ineffective for failing to challenge a legally correct instruction based on the alleged error of including the elements of simple assault in the definition of aggravated assault because “[o]ne cannot commit aggravated assault as charged in this case without first committing a simple assault as defined in A.R.S. § 13-1203.” Id.

In denying the Rule 32 petition, the trial court concluded that “[w]hen a petitioner presents no material issue of fact or law which would entitle [him] to relief and the court determines that no purpose would be served by any further proceedings, summary dismissal . . . is appropriate.” (Doc. 1-1 at 14) (citing Ariz. R. Crim. P. 32.6(c)) (internal quotations omitted). Because “Petitioner failed to present any material issue of fact or law which would entitle him to an evidentiary hearing,” and “failed to state a colorable claim for relief on any basis[,]” the court ordered the petition summarily dismissed. Id. The court further stated that “Petitioner ha[d] failed to establish both prongs of the Strickland test as required for a claim of ineffective assistance of counsel” and thereby denied the petition. Id. at 14.

In his petition for review to the COA, Petitioner argued that trial and appellate counsel were ineffective for failing to object to and raise the claim that the trial judge erroneously failed to instruct the jury on simple assault as a lesser included offense of aggravated assault. In denying relief, the COA found that “the trial court clearly identified, addressed, and correctly resolved the claims of ineffective assistance of trial and appellate counsel [Petitioner] raises on review, and we adopt that portion of its decision.” (Doc. 9 Ex. G at 40).²⁴

24 “AEDPA directs federal courts to train their attention on the particular reasons why each state court that considered a prisoner's claims denied relief. When more than one state court has adjudicated a claim, the federal court analyzes the last ‘reasoned' state court decision.” Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016) (quoting Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005)). However, where “the last reasoned decision adopted or substantially incorporated the reasoning from a previous decision . . . it [is] reasonable for the reviewing court to look at both decisions to fully ascertain the reasoning of the last decision.” Barker, 423 F.3d at 1093; see also Robinson, 360 F.3d at 1055 (in evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision).

For purposes of federal habeas review, Petitioner bears the burden of showing that the state court, in ruling that counsel was not ineffective, applied Strickland in an objectively unreasonable manner. In making this determination, “the question is not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 105. Here, the undersigned finds that Petitioner has failed to meet his burden. The state court's finding that Petitioner's claims that trial and appellate counsel were ineffective for failing to challenge the jury instructions were without merit is supported by the record before this Court and was not an unreasonable application of Strickland.

When reviewing a claim of IAC, this Court “begin[s] with the premise that under the circumstances, the challenged action [] might be considered sound trial strategy . . . [and w]e affirmatively entertain the range of possible reasons . . . counsel may have had for proceeding as they did.” Elmore v. Sinclair, 799 F.3d 1238, 1248-49 (9th Cir. 2015) (second and fifth alterations in original) (internal quotations and citations omitted). “As long as defense counsel uses a sound trial strategy, employing that strategy does not constitute deficient performance.” Elmore, 799 F.3d at 1250 (internal quotations and citation omitted). “Counsel's decisions regarding jury instructions are fairly construed as a strategic decision.” Pinkoson v. Davenport, 2009 WL 2219285, at *5 (D. Ariz. July 24, 2009) (citing Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002)).

Here, Petitioner alleges that the jury instructions were incorrect because they did not provide a basis for the jury to choose a lesser included offense. Petitioner contends that because he provided evidence and testimony that he acted in self-defense, and because he lacked the culpable mental state required to establish aggravated assault, a lesser included offense instruction was necessary. Petitioner thus argues that trial counsel was ineffective for failing to challenge the jury instructions and failing to request a lesser included offense instruction. However, while Petitioner urges the Court to adopt a different interpretation of the evidence presented at trial, he fails to show that the state court's determination of his IAC claim was objectively unreasonable.²⁵ The PCR court reasoned that, under state law, Petitioner was not entitled to a lesser included offense instruction for simple assault because such a charge was not supported by the evidence because there was “no way that it can be found that the State failed to prove an element of the greater offense” and “the record was such that the jury would have to find [Petitioner] was either guilty or not guilty.” (Doc. 1-1 at 11). Thus, trial counsel could not be ineffective for failing to request an instruction that neither the law nor the evidence supported. See Anderson v. Prelesnik, 2010 WL 395907, at *28 (W.D. Mich. Jan. 4, 2010) (“Pursuing an ‘all-or-nothing' strategy of refusing to request instructions on lesser-included offenses in the hope that a jury may find insufficient evidence to convict Petitioner of the top count of the indictment against him can constitute valid trial strategy on behalf of trial counsel.”), report and recommendation adopted, 2010 WL 1254571 (W.D. Mich. Mar. 26, 2010); Rice v. Moore, 633 F.Supp.2d 541, 561-62 (S.D. Ohio 2008) (no federal constitutional right to receive an instruction on a lesser included offense in a non-capital case). “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. As the Ninth Circuit has artfully explained: “The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev'd on other grounds, 525 U.S. 141 (1998).

25 Further, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions[,]” Estelle, 502 U.S. at 67-68, and “[f]ederal courts are not forums in which to relitigate state trials[,]” Barefoot, 463 U.S. at 887, or reweigh the evidence, Hyde, 199 U.S. 84.

As to Petitioner's claim that appellate counsel was ineffective for failing to challenge the jury instructions on appeal, Petitioner has wholly failed to show that the state court's determination of this claim was objectively unreasonable under Strickland. On direct appeal, counsel argued that the State failed to present sufficient evidence of mens rea and that the trial court imposed an illegal sentence by improperly relying on prior convictions from Florida. That Petitioner disagrees with counsel's decision not to raise additional arguments does not make the decision wrong. “Under Strickland, counsel's representation must be only objectively reasonable, not flawless or to the highest degree of skill.” Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000). Further, “[no decision of the Supreme Court] suggests . . . that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). To require otherwise would “seriously undermine[] the ability of counsel to present the client's case in accord with counsel's professional evaluation.” Id.; see also United States v. Ricks, 810 F.2d 195 (4th Cir. 1987) (“Decisions by appellate counsel concerning which legal issues will be presented on appeal are ‘uniquely within the lawyer's skill and competence, and their resolution is ultimately left to his judgment.'” (quoting Cerbo v. Fauver, 616 F.2d 714, 718 (3d Cir.), cert. denied, 449 U.S. 858 (1980))). “There is no constitutional requirement that an advocate argue every issue on appeal, or that he present those chosen by the defendant. The determination of the issues to be raised in the appellate court is a matter which addresses itself to the sound discretion of the advocate.” State v. Jesperson, 1997 WL 39501, at *2 (Tenn. Crim. App. Jan. 28, 1997) (citing Jones, 463 U.S. at 750-51). “There is no requirement that an attorney appeal issues that are clearly untenable[, and c]ounsel need not appeal every possible question of law at the risk of being found to be ineffective.” Gustave, 627 F.2d at 906. Thus, the question of what claims should be raised in the appellate court is left to the sound discretion of appellate counsel. While Petitioner may disagree with appellate counsel's evaluation of the issues, an “attorney need not advance every argument, regardless of merit, urged by the appellant.” Evitts, 469 U.S. at 394. That Petitioner disagrees with appellate counsel's decision to only raise the mens rea and sentencing error claims does not make counsel ineffective for failing to raise issues that counsel, in exercising his discretion, reasonably determined should not be presented. Gustave, 627 F.2d at 906; Jesperson, 1997 WL 39501, at *2.

Further, regardless of whether trial counsel was deficient for failing to request a lesser included offense instruction, or appellate counsel was deficient for failing to raise this issue on appeal, Petitioner has failed to establish prejudice. See Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985) (where petitioner failed to prove that counsel erred in failing to request an instruction “and that the error was one that a reasonably competent attorney acting as a diligent conscientious advocate would not have made,” court need not consider prejudice); see also Eppard v. Janda, 2013 WL 1401216, at *11 (C.D. Cal. Mar. 4, 2013) (“To prevail on a claim of ineffective assistance for failure to request an instruction, a petitioner must establish that the failure to request the instruction fell below an objective standard of reasonableness and that a reasonable probability exists that had the request been made, it would have been granted and the result of the trial would have been different.”).

In sum, Petitioner has not shown that the state court's rejection of his Ground Three (b) and (c) claims was contrary to clearly established federal law, was based on an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts considering the evidence presented in the state court proceeding, and thus Petitioner is not entitled to federal habeas relief on these claims. Accordingly, the state court's finding that Petitioner's IAC claims were without merit is supported by the record before this Court and was not an objectively unreasonable application of Strickland. The undersigned therefore recommends that the District Court deny relief on Ground Three (b) and (c).

IV. RECOMMENDATION

In conclusion, the Magistrate Judge RECOMMENDS that the District Court DENY Petitioner Sonny Jean's Petition for Writ of Habeas Corpus. (Doc. 1).

Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).