Opinion
CV 19-02288-PHX-NVW (MHB)
04-16-2020
Mauricio Lombardo, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT COURT:
Petitioner Mauricio Lombardo, who is confined in the Arizona State Prison Complex filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer, and Petitioner filed a reply. (Docs. 18, 19.)
Petitioner later amended his Petition to add the Director of the Arizona Department of Corrections. (Docs. 4, 8.)
BACKGROUND
Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR 2013-111384, of attempt to commit second-degree murder, kidnapping, first-degree burglary, assault, and three counts of aggravated assault. He was sentenced to concurrent terms of imprisonment, the longest of which is 16 years. (Doc. 12; Doc. 18, Exhs. I, J, M.)
The Arizona Court of Appeals described the facts of the case, as follows:
¶ 2 Lombardo was involved in a long-term romantic relationship with G.N. The relationship ended in 2012, at which point Lombardo moved out of G.N.'s
home. G.N. attempted to maintain a friendship with Lombardo, but Lombardo was not able to accept that they were just friends.State v. Lombardo, 2015 WL 4575985 (Ariz. Ct. App. July 30, 2015).
¶ 3 In 2013, during a heated conversation through text message, Lombardo sent a video of G.N. in the shower and threatened to put it on YouTube. When G.N. returned home from work, during which this heated conversation had taken place, she called her mother while she searched her home for signs of Lombardo. When she did not find any signs of a forced entry G.N. went to sleep.
¶ 4 G.N. awoke sometime later to find Lombardo standing over her with a glove and a knife. Lombardo then began stabbing G.N. A struggle ensued and G.N. at different times was both punched in the face and strangled by Lombardo. During the attack G.N. scratched and bit Lombardo. After the two struggled for a while, Lombardo stopped attacking G.N. for unexplained reasons.
¶ 5 G.N. requested to go to the hospital but Lombardo refused and, instead, offered to bandage her himself. After Lombardo bandaged G.N.'s wounds, he started fixing a computer issue on G.N.'s computer and G.N. fell asleep. When G.N. awoke, Lombardo was still in her house and had taken her phone. Lombardo allowed G.N. to leave the house the next morning to go to work.
¶ 6 Although Lombardo testified G.N. allowed him into the house and that G.N. had been the initial aggressor, the jury found him guilty of all seven counts. The court then held a trial for the jury to determine whether aggravating factors existed as to each count. The jury found the State proved several aggravating factors. The court sentenced Lombardo to an aggravated term of 16 years imprisonment for attempted murder, concurrent with all other lesser sentences. The court awarded Lombardo 404 days of presentence incarceration credit.
Counsel for Petitioner filed a timely appeal in accordance with Anders v. California, 386 U.S. 738 (1967), requesting that the appellate court search the record for fundamental error. Despite being given the opportunity, Petitioner did not file a supplemental brief. The appellate court subsequently affirmed Petitioner's convictions and sentences - except the sentence for Count 6, which the court vacated and remanded for resentencing. See Lombardo, 2015 WL 4575985.
The Mandate reflects that Petitioner filed a petition for review that was forwarded to the Arizona Supreme Court. The petition was denied on February 16, 2016. (Exh. L.) The trial court re-sentenced Petitioner to three years' imprisonment on Count 6, to be served concurrently with his other sentences. (Exh. M.)
On August 13, 2015, Petitioner filed a Notice of Post-Conviction Relief (PCR). (Exh. N.) Appointed counsel filed a notice of completion asserting no colorable claim for relief. (Exh. O.) Petitioner was afforded the opportunity to file a pro per PCR petition, and did so, raising the following claims:
1) Trial Counsel was ineffective, inept and ill prepared in his presentation and preparation for trial(Exh. P.) The State responded arguing that pursuant to Rule 32.2, Petitioner was precluded from raising any claim that he could have, but failed to, raise on direct appeal. The State also argued that Petitioner's ineffective assistance of counsel claims were meritless. Thereafter, Petitioner filed a reply. Petitioner failed to address the State's argument regarding preclusion of his claims, and instead responded only addressing his ineffective assistance of counsel claims. (Exhs. Q, R.)
2) The petitioners United States Constitutional 6th Amendment right to present a qualified defense was illegally blocked by the trial court and barred by the failure of trial counsel to notice the court of affirmative defense or provide proper proof of his claim.
3) The petitioner's United States Constitutional 5th Amendment rights were violated by presentation by states counsel of arguments that prejudiced the jury.
4) The petitioner's defense was prejudiced by failure of state's counsel to disclose all discovery, a Brady violation, that had the petitioner had complete discovery he would have presented additional exculpatory evidence at trial.
5) The defendants United States Constitutional 4th Amendment right to proper search and seizure was violated by police officers, when they illegally searched the petitioner's home without permission or the benefit of a proper warrant.
The State conceded that a hearing was warranted on Petitioner's claim that trial counsel was ineffective for failing to file a notice of defenses alleging self-defense.
On June 5, 2018, the state court dismissed the PCR petition addressing each of Petitioner's claims, as follows:
In his Petition, Defendant seeks relief by contending that that trial counsel rendered ineffective assistance by failing to do the following:
1) File a notice of defenses alleging self-defense
2) Prepare for an affirmative defense
3) Adequately provide or prepare proof of Defendant's self-defense claim
4) Object to the Court's decision to deny Defendant's affirmative defense
5) File Rule 20 documents with the Court
6) Investigate and present exculpatory and corroborating evidence and witness testimony
7) Prepare fully to a reasonable extent for trial, and
8) Object when the State mentioned that Defendant invoked his right to remain silent
Defendant's contentions that counsel was ineffective (2) for failing to prepare for an affirmative defense, (3) adequately provide or prepare proof of Defendant's self-defense claim, (6) investigate and present exculpatory and corroborating evidence and witness testimony, and (7) prepare fully to a reasonable extent for trial are without merit. ... Defendant does not specify any acts, instead relying on vague statements, such as "trial counsel failed to do even the most basic of preparation", or "trial counsel did not adequately prepare a proper body of proof." (Defendant's Petition at 15 and 16). Since these claims are vague and conclusory, they do not warrant a hearing. State v. Krum, 183 Ariz. 288, 295 (1995).
Defendant's claim that (1) defense counsel failed to file of notice of the defense of self- defense is mooted by the fact that the trial court considered the merits of defendant's self-defense claim on January 21, 2014, after the State rested and before the Rule 20 motion was heard.
On January 21, 2104, the trial court considered Defense counsel's proffer and deemed it inadequate. At that time, the evidence presented was that the Victim suffered multiple and serious injuries in her own home in the middle of night in a confrontation created by Defendant coming to her home. Defense counsel's proffer did nothing to undermine those facts or met the elements of self-defense under A.R.S. §13-408.
Similarly, his claim that (5) his counsel failed file Rule 20 documents with the Court is contradicted that Defense counsel fully argued a Rule 20 motion following the presentation of the state's case on January 21, 2014.
Defendant's claim that (4) his counsel failed to get a self-defense instruction fails because his counsel did argue to raise self-defense after the State rested on January 21, 2014. Whether the trial court erred in refusing to give a self-defense instruction is an issue that must be made in his direct appeal. Rule 32.2(a)(3); State v. Stewart, 202 Ariz. at 449, ¶ 8. Since the Court of Appeals' Anders review required a search for fundamental error, this Court must find no prejudice in Defense counsel's lack of success in getting a self-defense instruction.
Defendant's claim that his counsel failed to (8) object when the State mentioned that Defendant invoked his right to remain silent is an issue that must be made in his direct appeal. Rule 32.2(a)(3); Stewart, 202 Ariz. at 449, ¶ 8. Since the Court of Appeals' Anders review required a search for fundamental error, this Court must find no prejudice related to the claim.
The State conceded that a hearing is warranted on Defendant's claim that trial counsel was ineffective for failing to file a notice of defenses alleging self-defense on grounds that the sentencing judge's testimony would somehow be relevant. This Court is not clear on what testimony the trial court could
provide outside what was said on the record or drafted in a Minute Entry ruling to the issue that Defense counsel failed to file a Rule 15.2 Notice. As ruled above, the trial court considered the merits of Defendant's self-defense claim, rendering the failing to filing any formal notice moot.(Exh. S.)
On July 30, 2018, Petitioner filed a petition for review with the Arizona Court of Appeals alleging the following claims: (1) counsel was ineffective for failing to prepare for an affirmative defense or adequately prepare for Petitioner's self-defense claim; (2) counsel was ineffective for failing to investigate and prepare exculpatory and corroborating evidence; (3) counsel was ineffective for failing to object to the State mentioning that Petitioner invoked his right to remain silent; (4) counsel was ineffective for failing to object to the court's decision to deny Petitioner's affirmative defense; (5) counsel was ineffective for failing to file a timely notice of defense; (6) violation of Petitioner's right to present a complete defense; (7) counsel was ineffective for failing to discover and raise a Brady violation; and (8) violation of Petitioner's Fourth Amendment rights. (Exh. T.) On January 31, 2019, the Court of Appeals granted review, but denied relief summarily finding no abuse of discretion. (Exh. V.)
In his habeas petition, Petitioner raises six grounds for relief with multiple sub-claims (Docs. 12, 1):
1. Petitioner's trial counsel was ineffective, in violation of Petitioner's Sixth Amendment rights, because counsel failed to investigate the case, present exculpatory and corroborating evidence, prepare for trial, interview witnesses, confer with Petitioner, be familiar with readily available documents and evidence to use at trial, impeach the State's witnesses or challenge the State's theory of the case, request discovery of items Petitioner had requested, and protect Petitioner's Eighth and Fourteenth Amendment rights.
2. Petitioner's Fourth Amendment rights were violated when the police illegally searched Petitioner's home without a proper warrant or Petitioner's permission and Petitioner received ineffective assistance of counsel when his attorney failed to request a suppression hearing.
3. Petitioner's trial counsel was ineffective in violation of Petitioner's Sixth and Fourteenth Amendment rights, because his attorney failed to provide the required Notice of Affirmative Defense, prepare an affirmative defense, adequately provide proof of Petitioner's self-defense, object to the trial court's sua sponte decision "denying self defense," investigate and present corroborating evidence, and present a "complete and qualified" defense.
4. Petitioner's Fifth Amendment rights were violated when the prosecutor made arguments that prejudiced the jury and Petitioner received ineffective assistance of counsel when his attorney failed to protect Petitioner's Fifth Amendment rights.
5. Petitioner's due process rights were violated and his defense was prejudiced when the prosecutor failed to disclose "all discovery," in violation of Brady v. Maryland, 373 U.S. 83 (1963).
6. Petitioner's Sixth and Fourteenth Amendment rights were violated because his trial counsel is actively hindering Petitioner's efforts to overturn his conviction and his appellate and post-conviction counsel ignored colorable claims.
In their Answer, Respondents argue that Petitioner's grounds for relief are either procedurally defaulted without an excuse for the default, or fail on the merits.
DISCUSSION
A. Standards of Review
1. Merits
Pursuant to the AEDPA, a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is "difficult to meet." Harrington v. Richter, 562 U.S. 86, 102 (2011). 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) (per curiam) (citation and internal quotation marks omitted). "When applying these standards, the federal court should review the 'last reasoned decision' by a state court ... ." Robinson, 360 F.3d at 1055.
Antiterrorism and Effective Death Penalty Act of 1996.
A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 404-05. "A state court's decision can involve an 'unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
2. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have "fairly presented" to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). A claim is only "fairly presented" to the state courts when a petitioner has "alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution." Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) ("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.").
A "general appeal to a constitutional guarantee," such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory."). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
Even when a claim's federal basis is "self-evident," or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, "either by citing federal law or the decisions of federal courts." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court "must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim" to discover implicit federal claim).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both "independent" and "adequate" - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.") (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is "independent" if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is "adequate" if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.") (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.") (citing Harris, 489 U.S. at 264 n.10).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred"); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or 'if it is clear that the state court would hold the claim procedurally barred.'") (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are "independent" of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) ("We have held that Arizona's procedural default rule is regularly followed ["adequate"] in several cases.") (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not "strictly or regularly followed" Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the "cause and prejudice" test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. "A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis." Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable "cause" for a petitioner's failure to fairly present his claim. Regarding the "miscarriage of justice," the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as "plainly meritless"). B. Grounds One, Two, Four, Five, and Six
In a sub-part of Ground One, Petitioner alleges that his counsel was ineffective for failing to interview witnesses, confer with Petitioner, be familiar with readily available documents and evidence to use at trial, impeach the State's witnesses or challenge the State's theory of the case, request discovery of items, and protect Petitioner's Eighth and Fourteenth Amendment rights. In a sub-part of Ground Two, Petitioner alleges that he received ineffective assistance of counsel when his attorney failed to request a suppression hearing. In a sub-part of Ground Four, Petitioner alleges that his Fifth Amendment rights were violated when the prosecutor made arguments that prejudiced the jury. In Ground Five, Petitioner alleges that his due process rights were violated and his defense was prejudiced when the prosecutor failed to disclose "all discovery," in violation of Brady v. Maryland, 373 U.S. 83 (1963). In Ground Six, Petitioner alleges that his counsel actively hindered his efforts to overturn his conviction and his appellate and post-conviction counsel ignored colorable claims.
The record reflects that Petitioner failed to fairly present these claims to the state courts. To the extent that Petitioner's Fifth Amendment and Brady claims can be construed as having been presented in his PCR petition, Petitioner failed to raise those exact claims in his petition for review to the Arizona Court of Appeals. Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 32.2(a), 32.4(a), 32.9(c). Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner has not established that any exception to procedural default applies.
The Court further notes that Petitioner failed to present his Fifth Amendment and Brady claims to the Arizona Court of Appeals on direct review. Although the state court did not specifically address preclusion of Petitioner's Brady claim (presumably because Petitioner failed to address the State's arguments regarding preclusion in his reply brief), the court specifically cited to Rule 32.2(a)(3), an independent and adequate state law ground, in denying Petitioner's Fifth Amendment claim. (Exh. S.)
Indeed, in his reply, Petitioner states that the exhaustion requirement "never applied in a criminal justice overview process." Petitioner discusses the facts, argues the merits, and explains his case citations. Petitioner states that Respondents are attempting to "distract" the Court with their procedural default arguments. He contends that the "federal court should upset the Arizona states post conviction relief procedures, as well as, appellate proceedings because the rebuttal motion is laced with facts." These conclusory statements are not sufficient to overcome procedural default jurisprudence.
Additionally, Petitioner's status as an inmate, lack of legal knowledge, and limited legal resources do not establish cause to excuse the procedural default. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.
Petitioner has also not established a fundamental miscarriage of justice. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a "fundamental miscarriage of justice." Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is "demanding." House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial." Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner "must demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a 'miscarriage of justice.'" House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a petitioner must present "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. Although Petitioner continues to argue the merits of his claims in his reply, he has not argued or established a sufficient showing of actual innocence to demonstrate a miscarriage of justice. Therefore, Petitioner cannot excuse his procedural defaults on this basis.
In his reply, Petitioner cites to Martinez v. Ryan, 566 U.S. 1 (2012), asking the Court to "ignore that default and consider IAC claims on the merits." In Martinez, the Supreme Court created a "narrow exception" to the principle that "an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Id. The Court held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id.
"Cause" is established under Martinez when:
(1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding.Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).
The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert "cause" to overcome the procedural bar based on attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." Id. at 16.
Petitioner has not demonstrated "substantial" claims of ineffective assistance of counsel. A "substantial" claim "has some merit." Id. at 14. Like the standard for issuing a certificate of appealability, to establish a "substantial" claim, a petitioner must demonstrate that "reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (internal quotations omitted). In other words, a claim is "'insubstantial' if it does not have any merit or is wholly without factual support." Id. Determining whether an ineffective assistance of counsel claim is "substantial" requires a district court to examine the claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See id. at 687-88. To establish deficient performance, a petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Id. at 699. A petitioner's allegations and supporting evidence must withstand the court's "highly deferential" scrutiny of counsel's performance, and overcome the "strong presumption" that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 689-90. A petitioner bears the burden of showing that counsel's assistance was "neither reasonable nor the result of sound trial strategy," Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that "'might be considered sound trial strategy'" do not constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, a petitioner must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the possibility that a petitioner suffered prejudice is insufficient to establish Strickland's prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) ("[A petitioner] must 'affirmatively prove prejudice.' ... This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him.") (quoting Strickland, 466 U.S. at 693). However, the court need not determine whether counsel's performance was deficient if the court can reject the claim of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the court may proceed directly to the prejudice prong).
In a sub-part of Ground One, Petitioner alleges that his counsel was ineffective for failing to interview witnesses, confer with Petitioner, be familiar with readily available documents and evidence to use at trial, impeach the State's witnesses or challenge the State's theory of the case, request discovery of items, and protect Petitioner's Eighth and Fourteenth Amendment rights. In a sub-part of Ground Two, Petitioner alleges that he received ineffective assistance of counsel when his attorney failed to request a suppression hearing. In Ground Six, Petitioner alleges that his counsel actively hindered his efforts to overturn his conviction and his appellate and post-conviction counsel ignored colorable claims.
Petitioner recites a narrative of facts and conclusory allegations claiming that defense counsel was ineffective in almost every aspect of his performance. Petitioner's broad allegations are vague and unsupported, making it difficult for the Court to identify and meaningfully address the sub-claims alleged therein.
Regarding Ground One, Petitioner states that counsel's failure to interview witnesses "would have generated not only defense testimony that would have produced exculpatory testimony, but also would have undoubtedly produced impeachment evidence." Petitioner states that counsel's failure to confer prevented counsel from being aware of a file and be familiar with documents and evidence. Petitioner states that counsel's "inept behavior" prevented him from "declaring self defense" and calling witnesses. Petitioner refers to discovery turned over by the State that would have corroborated his version of the facts, and states that counsel avoided the protections of his Eighth Amendment rights as retribution for Petitioner's mother having filed a complaint against him with the State Bar.
As to Ground Two, Petitioner fails to mention anything about counsel's alleged failure to request a suppression hearing. And, for Ground Six, although Petitioner claims that "Appellate and Rule 32 counsel committed ineffective assistance of counsel by ignoring the colorable claims raised in this and subsequent grounds," Petitioner fails to support his claim with anything beyond a narrative statement of self-serving facts and speculation.
Accordingly, having reviewed Petitioner's ineffective assistance of counsel claims alleged in the sub-parts of Grounds One and Two, as well as, Ground Six, the Court finds that Petitioner's allegations do not establish substantial claims of ineffective assistance of counsel. See, e.g., Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (conclusory allegations of ineffective assistance do not warrant relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same). Thus, Petitioner has not established cause for his procedural default of Grounds One, Two, and Six under Martinez. The Court will recommend that these sub-claims be denied.
C. Ground Two
In a sub-part of Ground Two, Petitioner alleges that his Fourth Amendment rights were violated when the police illegally searched his home without a proper warrant or permission.
The Fourth Amendment prohibits unreasonable searches and seizures. Under a judicially created doctrine known as the "exclusionary rule," evidence obtained by police officers in violation of the Fourth Amendment is excluded at trial. See Stone v. Powell, 428 U.S. 465, 482 (1976). In Stone v. Powell, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494. In reviewing a federal habeas petitioner's Fourth Amendment claim, "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
In his Petition, Petitioner does not argue or demonstrate that he was denied a full and fair opportunity to litigate his Fourth Amendment claim. Because a "Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court," the Court will recommend that this portion of Ground Two be denied. See Ortiz-Sandoval, 81 F.3d at 899. D. Grounds One, Three, and Four
1. Ground One
In a sub-part of Ground One, Petitioner alleges that his counsel was ineffective for failing to investigate the case, present exculpatory and corroborating evidence, and prepare for trial.
In its denial of these claims, the state court found that "Defendant does not specify any acts, instead relying on vague statements, such as 'trial counsel failed to do even the most basic of preparation', or 'trial counsel did not adequately prepare a proper body of proof.' (Defendant's Petition at 15 and 16). Since these claims are vague and conclusory, they do not warrant a hearing. State v. Krum, 183 Ariz. 288, 295 (1995)." (Exh. S.)
Petitioner states that counsel failed to investigate "blood spatter evidence, look for DNA evidence of the lack of presence of blood would have precluded presentation of the alleged knife as evidence at trial. Had DNA testing been performed on the alleged knife the result would have shown the lack of presence of blood of either the petitioner's DNA or alleged victim." Petitioner also states that counsel failed to "investigate and request a complete record of text messages and call logs from the victim's I-phone ... which would have corroborated petitioner's testimony and impeachment material." Petitioner states that the prosecution used text messages from the victim's phone to "color the minds of the jury allowing the jury to believe petitioner is a 'bad guy' making it easier to obtain a conviction." Petitioner states that counsel met with him twice prior to trial preventing him from being aware of additional evidence.
Defense counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. "Absent an account of what beneficial evidence investigation into any of these issues would have turned up, [the defendant] cannot meet the prejudice prong of the Strickland test." Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995).
Initially, the Court notes that Petitioner's contentions regarding the knife are entirely speculative, if not incorrect, as his own trial testimony confirms that he used the knife to cut the victim on her left side and stab her in the left buttocks. (Exh. Y at 45; Exh. Z at 39.) Moreover, Petitioner fails to suggest what information would have been disclosed by such an investigation into the victim's phone and text messages - or how the investigation would have altered the outcome of trial. Petitioner merely presumes that there were omissions.
Accordingly, the Court finds that Petitioner's claims are vague, conclusory, and without merit. Petitioner fails to demonstrate how counsel's actions demonstrate deficient performance, and even assuming deficient performance, Petitioner has not shown that any further investigation or preparation would have resulted in a different trial outcome. The state court's decision was neither contrary to, nor an unreasonable application of federal law. The Court will recommend that this claim be denied.
2. Ground Three
In Ground Three, Petitioner's alleges that his trial counsel was ineffective because he failed to provide the required Notice of Affirmative Defense, prepare an affirmative defense, adequately provide proof of Petitioner's self-defense, object to the trial court's decision "denying self defense," investigate and present corroborating evidence, and present a "complete and qualified" defense.
In denying these claims, the state court stated:
Defendant does not specify any acts, instead relying on vague statements, such as "trial counsel failed to do even the most basic of preparation", or "trial counsel did not adequately prepare a proper body of proof." (Defendant's Petition at 15 and 16). Since these claims are vague and conclusory, they do not warrant a hearing. State v. Krum, 183 Ariz. 288, 295 (1995). ...
Defendant's claim that (1) defense counsel failed to file of notice of the defense of self- defense is mooted by the fact that the trial court considered the merits of defendant's self-defense claim on January 21, 2014, after the State rested and before the Rule 20 motion was heard.
On January 21, 2104, the trial court considered Defense counsel's proffer and deemed it inadequate. At that time, the evidence presented was that the Victim suffered multiple and serious injuries in her own home in the middle of night in a confrontation created by Defendant coming to her home. Defense counsel's proffer did nothing to undermine those facts or met the elements of self-defense under A.R.S. §13-408.
Similarly, his claim that (5) his counsel failed file Rule 20 documents with the Court is contradicted that Defense counsel fully argued a Rule 20 motion following the presentation of the state's case on January 21, 2014.
Defendant's claim that (4) his counsel failed to get a self-defense instruction fails because his counsel did argue to raise self-defense after the State rested on January 21, 2014. Whether the trial court erred in refusing to give a
self-defense instruction is an issue that must be made in his direct appeal. Rule 32.2(a)(3); State v. Stewart, 202 Ariz. at 449, ¶ 8. Since the Court of Appeals' Anders review required a search for fundamental error, this Court must find no prejudice in Defense counsel's lack of success in getting a self-defense instruction.(Exh. S.)
* * *
The State conceded that a hearing is warranted on Defendant's claim that trial counsel was ineffective for failing to file a notice of defenses alleging self-defense on grounds that the sentencing judge's testimony would somehow be relevant. This Court is not clear on what testimony the trial court could provide outside what was said on the record or drafted in a Minute Entry ruling to the issue that Defense counsel failed to file a Rule 15.2 Notice. As ruled above, the trial court considered the merits of Defendant's self-defense claim, rendering the failing to filing any formal notice moot.
Petitioner provides a list of alleged attorney errors and supports his claims by stating that "trial counsel meets and exceeds the legal definition of ineffective assistance of counsel by failing to do basic legal research reviewing testimonials provided to police reviewing key witness testimony including and perhaps especially his client and to be familiar with readily available documents necessary to understand his clients case and to be able to present a complete defense."
Again, Petitioner simply presumes that there were omissions, yet he fails to support his claims with anything beyond self-serving, conclusory statements. Not only do these statements fail to establish deficient performance, but Petitioner has failed to show prejudice. Moreover, regarding the notice of defenses - as reflected on the record and in the state court's ruling, assuming deficient performance for counsel's failure to timely file a notice of defenses alleging self-defense, the Court finds no prejudice as counsel argued and the trial court ultimately considered the merits of the self-defense claim, finding as follows:
When Mr. Lombardo was questioned by the police he didn't know anything about what happened to [G.N.], the victim, didn't remember anything about the incident. His wounds, pursuant to the photos, are not really consistent with self-defense. He made certain admissions in the letters which are exhibits. I don't have the numbers in front of me, but I can supplement the record. Quoting in one of the letters, it says here "you enraged me to the point where I could no longer control my - " which does not comport with a self-defense instruction. And he didn't remember anything about the incident. As I already said. So almost nothing the defendant did as far as subsequent to the incident
shows that a self-defense instruction is appropriate or a self-defense could be raised.(Exh. Y at 3-9.)
Accordingly, the Court finds the that state court's decision was neither contrary to, nor an unreasonable application of federal law. The Court will recommend that this claim be denied.
3. Ground Four
In a sub-part of Ground Four, Petitioner alleges that he received ineffective assistance of counsel when his attorney failed to protect his Fifth Amendment rights.
The state court denied this claim finding: "Defendant's claim that his counsel failed to (8) object when the State mentioned that Defendant invoked his right to remain silent is an issue that must be made in his direct appeal. Rule 32.2(a)(3); Stewart, 202 Ariz. at 449, ¶ 8. Since the Court of Appeals' Anders review required a search for fundamental error, this Court must find no prejudice related to the claim." (Exh. S.)
Petitioner alleges that trial counsel "failed to object to protect the petitioners 5th Amendment rights. While the court made a ruling saying that petitioners silence was protected it failed to enforce this ruling during the proceedings or admonish the prosecution and advise the jury to disregard the questions, answers and testimony that violated the petitioners right to silence. ... the prosecution violated this right on multiple occasions."
Initially, the Court notes that it is unclear whether the state court addressed Petitioner's Fifth Amendment claim in an ineffective assistance analysis. In any event, Petitioner has failed to establish deficient performance. Petitioner makes broad generalizations regarding counsel's alleged omissions, and fails to identify or support his claim with any specific instances or examples in the record.
The Court observes that in his PCR petition, Petitioner referred to the following trial testimony when addressing this claim:
Q. And you told Sergeant Delhotal that "I don't remember anything anyway." Correct?
A. I had already asked for an attorney. I invoked my civil rights earlier.
Q. Okay?(Exh. P at 21; Exh. Z at 116.) To the extent Petitioner alleges deficient performance based on this exchange with the prosecutor, the Court is not persuaded as it finds no basis for counsel to have raised an objection based on Petitioner's Fifth Amendment rights.
A. To my knowledge, I don't have to disclose anything to the police after that fact. So what I stated to him at that point in time is irrelevant, frankly.
The reporter's original transcript of this exchange contains spacing errors. The Court has adjusted the errors in this Recommendation.
Accordingly, Petitioner has failed to demonstrate ineffective assistance of counsel. The state court's denial of this claim was not contrary to, nor an unreasonable application of federal law. The Court will recommend that this claim be denied.
CONCLUSION
Having determined that Petitioner's grounds for relief are either procedurally defaulted without an excuse for the default, or fail on the merits, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 16th day of April, 2020.
/s/_________
Honorable Michelle H. Burns
United States Magistrate Judge