Opinion
CV-23-00398-TUC-JCH (JR)
02-28-2024
John Anthony Majalca, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Petitioner John Anthony Majalca (“Majalca” or “Petitioner”), confined in the Arizona State Prison Complex-Yuma/Cheyenne Unit in San Luis, Arizona, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”). (Doc. 1.) This matter is on referral to the undersigned for Report and Recommendation. (Doc. 4.) The Petition is fully briefed. (Doc. 10, 13.) As more fully set forth below, this Court finds that Petitioner's Fourth Amendment claims alleged in Grounds One and Three are non-cognizable on habeas review. This Court further finds that Petitioner's claim of ineffective assistance of counsel (“IAC”) alleged in Ground Two is procedurally defaulted without excuse and barred from habeas review. Accordingly, the undersigned recommends that the district court, after an independent review of the record, dismiss the Petition.
Factual and Procedural Background
Unless otherwise indicated, the Factual and Procedural Background is taken from Respondent's Limited Answer to Petition for Writ of Habeas Corpus and the exhibits thereto. (Doc. 10.)
Petitioner's Conviction and Sentencing
The Arizona Court of Appeals recited the facts as follows:
On habeas review the facts as stated by the appellate court are presumed to be correct. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam).
¶2 From February to August 2018, the Tucson Police Department's Community Response Team (CRT) conducted weekly surveillance of Majalca in response to a tip the team had received from another law enforcement agency. The CRT is a specialized group of uniformed and plainclothes officers who conduct undercover operations dealing “mostly [with] narcotics and high level offenders.”
¶3 The CRT initially received information in F ebruary 2018 that Majalca was suspected of selling “a large amount of narcotics.” This tip included specific details, such as Majalca's name, address, and vehicle, and that he used a “small black handheld safe” to transport narcotics. The CRT verified his address, vehicle, and use of the safe through surveillance. In August 2018, the CRT conducted surveillance based on another tip regarding suspected narcotics dealing at a residence, in a “high crime area,” with “a lot of people with lengthy criminal history coming and going.” During surveillance, a plainclothes officer observed Majalca's vehicle at the residence and later saw him “walking out of a gate” carrying a “small black box” that he placed in the trunk of his vehicle. Suspecting that Majalca was in possession of narcotics, the CRT requested the assistance of a canine officer.
¶4 Majalca drove away from the residence and “committed a slew of traffic violations,” which the CRT “call[ed] out” to each other over the radio. For example, the officers observed Majalca speeding, changing lanes in an unsafe manner, driving through a private parking lot to avoid stopping at a red light, and failing to come to a complete stop at an intersection with a red flashing light. Based on the officers' specialized training in narcotics investigations, they considered Majalca's driving behavior to be consistent with a “heat run,” or “driving in a manner that would make it difficult to be surveilled or followed.”
¶5 A uniformed police officer working with the CRT initiated a traffic stop after independently observing a moving violation. The officer approached the vehicle and asked Majalca for his driver license and registration and then returned to his patrol vehicle to conduct a records check. Returning to Majalca's vehicle a second time, the officer asked for his phone number, which is required to print an e-citation, and questioned him about his driving behavior, specifically driving through the private parking lot and failing to stop at the red flashing light. Majalca denied committing either driving violation.
¶6 The officer returned to his patrol vehicle to generate the e-citation and confirmed that there were no pending 9-1-1 calls about Majalca's driving behavior. Then, based on “the observations made by the other members of the [CRT], [Majalca's] driving behavior, . . . [and his] denials about his [driving] behavior,” the officer decided to return to Majalca's vehicle a third time to conduct a horizontal gaze nystagmus (HGN) test to confirm he was not under the influence of intoxicants. After the HGN test, the officer asked Majalca where he was coming from, to which he answered that he was grocery shopping but did not mention he had just left the residence the CRT had under surveillance.
¶7 Once again, the officer returned to his patrol vehicle to print the e-citation, but the printer malfunctioned and needed to be readjusted and plugged back in. Before the officer was able to issue and explain the citation to Majalca, the canine unit arrived. At this time, the officer asked Majalca to step out of his vehicle “[s]o that he [wa]sn't in danger from a K-9 walking around [it],” and Majalca complied. The dog alerted to Majalca's vehicle, and a subsequent search revealed narcotics.
¶8 A grand jury indicted Majalca for possession of a narcotic drug for sale (heroin), possession of a dangerous drug for sale (methamphetamine), possession of drug paraphernalia, money laundering, two counts of possession of a narcotic drug (suboxone and methadone), five counts of possession of a deadly weapon during the commission of a felony drug offense, and four counts of possession of a deadly weapon by a prohibited possessor.
¶9 Majalca filed a motion to suppress, arguing that the initial stop lacked reasonable suspicion and, even if the officer had reasonable suspicion to initiate the stop, it was unconstitutionally prolonged. The state responded that the officer had reasonable suspicion to initiate the traffic stop, based on Majalca's moving violations, and that it was “not unreasonably prolonged”
because the “mission” of the stop was not completed before the canine unit arrived. The state also argued that the officer had reasonable suspicion that Majalca was involved in criminal drug activity. The trial court held a two-day evidentiary hearing and subsequently denied the motion to suppress, concluding that “the traffic stop was supported by reasonable suspicion and was not delayed for an unreasonable time period.”State v. Majalca, 251 Ariz. 325, 327-38, ¶¶ 2-9, 491 P.3d 1132, 1134-35 (Ariz. App. Div. 2 2021). Petitioner was convicted of possession of a narcotic drug for sale, possession of drug paraphernalia, two counts of possession of a narcotic drug, and four counts of possession of a deadly weapon during the commission of a felony drug offense. Id. at 327, ¶1, 491 P.3d at 1134. He was sentenced to mitigated, concurrent prison terms, the longest of which is 12 years. Id.
On October 6, 2020, Petitioner, through counsel, filed an opening brief in the court of appeals. Petitioner argued that the trial court erred in denying his motion to suppress evidence obtained during the traffic stop because the traffic stop was unconstitutionally prolonged because of a canine sniff of the exterior of his vehicle. (Doc. 10-1 at 150.) The state argued in opposition that the traffic stop was not prolonged by the canine sniff because the officer had not completed the mission of the stop when the canine sniff took place. Id. at 175, 187-93. The state also argued that any detention occurring as a result of the canine sniff was supported by an independent reasonable suspicion that Petitioner was committing drug-related crimes. Id. at 193-99.
On April 22, 2021, the court of appeals affirmed Petitioner's convictions and sentences. Majalca, 251 Ariz. at 331, ¶24, 491 P.3d at 1138. The appellate court rejected Petitioner's argument that the trial court erred in denying his motion to suppress reasoning:
¶18 In this case, Majalca contends the HGN test and multiple records checks were unnecessary for the mission of the traffic stop and, thus, the officer unconstitutionally prolonged the time required to complete it. The trial court ruled that “to the extent the stop was delayed for unrelated reasons, it appears that such delays were de minimis,” finding that the records checks and HGN test prolonged the traffic stop “by no more than two . . . minutes.” But as Majalca points out, Rodriguez rejected the “de minimis” standard and the “[a]uthority for the [traffic stop] ends when tasks tied to the traffic infraction are-or reasonably should have been-completed.” 575 U.S. at 354, 356.
¶19 However, even if we were to conclude Majalca was detained longer than allowed by the traffic stop's mission, there was a valid, independent basis for detaining Majalca: the officers' reasonable suspicion based on facts gathered before the stop that Majalca was involved in illegal drug activity. Although the trial court used the wrong legal standard, it came to the correct legal conclusion, and we therefore must affirm. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (App. 2012) (“We are required to affirm a trial court's ruling if legally correct for any reason . . . .”); see also State v. Perez, 141 Aria. 459, 464 (1984) (“The fact that the trial judge came to the proper conclusion for the wrong reason is irrelevant.”).
¶20 Unlike in Rodriquez and Sweeney, the traffic stop in this case was not “justified only by a police-observed traffic violation,” and, as the state argues, officers had independent reasonable suspicion to detain Majalca to wait for the canine unit to arrive based on the totality of the circumstances. Rodriguez, 575 U.S. at 350. “By definition, reasonable suspicion is something short of probable cause.” State v. O'Meara, 198 Ariz. 294, ¶ 10 (2000); see United States v. Cortez, 449 U.S. 411, 417-18 (1981) (reasonable-suspicion standard is investigatory in nature and involves “probabilities,” not “hard certainties” of criminal activity). “Although ‘reasonable suspicion' must be more than an inchoate ‘hunch,' the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory detention.” Teagle, 217 Ariz. 17, ¶ 25; Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (Fourth Amendment permits officer to conduct “investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot”). In determining whether reasonable suspicion authorized an officer to initiate an investigatory traffic stop, we look at the “whole picture to evaluate the totality of the circumstances” and to determine whether, “collectively, these factors . . . show reasonable suspicion of criminal activity.” O'Meara, 198 Ariz. 294, ¶ 9. Likewise, considering the totality of the circumstances permits officers to rely on their training and experience “to make inferences from and deductions about the cumulative information available to them [at the time
of the traffic stop] that ‘might well elude an untrained person.'” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S. at 418); see Teagle, 217 Ariz. 17, ¶ 26. Reasonable suspicion can be based on the collective knowledge of the officers involved in an investigation. See State v. Chavez-Inzunza, 145 Ariz. 362, 364 (App. 1985) (valid stop under collective-knowledge doctrine where officer who observed events constituting reasonable suspicion radioed other officers to conduct stop); see also State v. Lawson, 144 Ariz. 547, 553 (1985) (collective-knowledge doctrine does not require that arresting officer “personally be in possession of all the facts”). We review de novo whether reasonable suspicion justified an officer's investigatory stop and “accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions.” Teagle, 217 Ariz. 17, ¶ 26; see State v. Woods, 236 Ariz. 527, ¶ 13 (App. 2015).
¶21 The officers' testimony as to the circumstances-separate from the observed traffic violations-supporting reasonable suspicion that Majalca may have been involved in transporting narcotics included (1) information received about Majalca's involvement in the sale of narcotics; (2) the surveillance conducted February through August 2018 that confirmed the tips received, including the officers' observation of a “black safe” associated with Majalca, the location of is residence, and the description of his car; (3) Majalca had taken the safe into a suspected narcotics residence located in a “high crime area,” which was relayed by radio to the CRT; (4) his driving patterns consistent with that of a “heat run”; and (5) his evasive responses to questions about his whereabouts and the alleged traffic violations, which were inconsistent with the officer's own observations.
¶22 It was reasonable for the officers, based on their training and experience, to infer from these facts that Majalca was involved in criminal activity. See, e.g., Woods, 236 Ariz. 527, ¶ 16 (officer had reasonable suspicion to detain defendant during traffic stop until canine unit arrived where defendant “was using a rental car with no personal belongings inside, provided confusing explanations about the purpose of his trip, had an extensive criminal history of drug transportation, and had two unlabeled taped boxes in the trunk of his car that had a weight and density consistent with drug packages”). We therefore conclude that the officers had reasonable suspicion to believe Majalca was engaged in drug-related activity, justifying the call for the canine unit and the dog sniff. And, the uniformed officer had sufficient information to detain Majalca for the time it took for the canine unit to arrive.
¶23 In sum, although the call for the canine unit and subsequent dog sniff extended the time Majalca was detained for reasons connected to the traffic
violations, it was permissible based on the officers' reasonable suspicion he was involved in criminal activity before, and unrelated to, those violations. The officers therefore had two independent reasons to detain Majalca: (1) officer-observed traffic violations and (2) reasonable suspicion of criminal activity from the earlier surveillance.Majalca, 251 Ariz. at 331-32, ¶¶18-23, 491 P.3d at 1137-38. Petitioner did not petition the Arizona Supreme Court for review of the court of appeals' decision. (Doc. 1 at 3.)
Petitioner timely filed a notice of post-conviction relief (“PCR”). (Doc. 10-1 at 23942.) Petitioner's court appointed counsel filed a notice of review advising that counsel found no colorable claim for review and requested that Petitioner be permitted to file a pro se PCR petition if he chose to do so. Id. at 244-45, 247-53.
On October 20, 2022, Petitioner, proceeding pro se, filed a PCR petition arguing that his counsel was ineffective for failing to conduct a reasonable pretrial investigation, not demanding a probable cause hearing and failing to cross-examine the officers in the suppressing hearing, all in alleged violation of his Sixth and Fourteenth Amendment rights. He also argued that his Fourth Amendment rights were violated, the prolonged traffic stop was unjustified, he did not have a full and fair hearing on his Fourth Amendment claim, and the officer's testimony regarding the traffic violation that supported reasonable suspicion and probable cause was false. Id. at 269-70.
The PCR court denied Petitioner's PCR petition finding Petitioner's Fourth Amendment claim precluded reasoning:
Rule 32.2(a)(2) provides that a defendant is precluded from Rule 32 relief based on any ground “finally adjudicated on the merits in an appeal.” In his brief, defendant appears to suggest that the stop and search that led to his arrest was in violation of the 4th Amendment. This argument was the subject of the aforementioned appeal and was decided on the merits. Consequently,
defendant is precluded from raising the argument in a petition for post-conviction relief.Id. at 309-11. The PCR court also found Petitioner's IAC claim meritless reasoning:
Defendant contends that his trial lawyer was ineffective for failing to conduct a reasonable pretrial investigation and demand a probable cause hearing. This argument is directly contradicted by the record. Defendant's first trial attorney conducted pretrial interviews and filed a motion to suppress the evidence that was seized which gave rise to the charges in this case. Trial counsel also filed a reply after receiving the State's response. Both the opening motion and reply include many fact specific references defense counsel gleaned during the Rule 15 interviews and which are repeated in defendant's Rule 32 petition. Defendant then hired private counsel who filed yet another motion to suppress which included arguments that are also referenced in defendant's Rule 32 petition. At that time the matter was assigned to the Hon. Jeffrey Bergin. Testimony and argument were presented over a two-day period. Judge Bergin subsequently denied the motions to suppress in an order dated November 19, 2019.
A successful colorable ineffective assistance of counsel claim must satisfy the Strickland two-step test. Strickland v. Washington, 104 S.Ct. 2052 (1984); State v. Borbon, 146 Ariz. 392 (1985); citing State v. Nash, 143 Ariz. 392, 397 (1985) and State v. Lee, 142 Ariz. 210, 214 (1984). First, defendant must show that counsel's performance fell below an objective standard of reasonableness as measured under prevailing professional norms. Id. The defendant must provide the trial court with relevant support for the claim. See State v. Febles, 210 Ariz. 589, 595 (2005).
Second, defendant must demonstrate that counsel's performance prejudiced the defense. Id. This requires the defendant to demonstrate there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Hinton v. Alabama, 571 U.S. 263, 272, 134 S.Ct. 1081, 1089 (2014). This objective standard provides attorneys “the necessary freedom to make tactical decisions” and affords them scrutiny that is highly deferential.[] Nash at 398 (1985). In the context of an ineffective assistance claim, strategic decisions are conscious, reasonably informed decision[s] made by an attorney with an eye to benefitting his client. “The issue becomes whether counsel's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011).
Failure to meet either prong in the Strickland test is fatal to the ineffective assistance of counsel claim. State v. Bennett, 213 Ariz. 582 (2006). A strong presumption exists that appellate counsel provided effective assistance. State v. Valdez, 167 Ariz. 328, 329-30 (1991).
As the record clearly shows, both [of] defendant's trial attorneys made significant efforts to persuade the court to suppress the evidence that was seized at the time he was arrested and which was the basis of the charges for which he was convicted. Defendant has presented no colorable claim to support his request for relief for ineffective assistance of counsel.(Doc. 10-1 at 310-11.)
Petitioner timely sought review of the PCR court's denial of his PCR petition. (Doc. 10-2 at 2.) He argued on review that he did not receive a full and fair hearing on his Fourth Amendment claim because police officers lied about the facts pertaining to probable cause and the prolonged traffic stop and, as to those officers that who, according to Petitioner, admitted a lack of probable cause in their Rule 15 interviews, they were not present at the suppression hearing. Id. at 7. Petitioner also argued that his trial counsel did not competently represent him at every critical stage of the case “specifically the suppression hearing where [ . . . ] counsel failed to address the real facts regarding the officers' probable cause.” Id. Petitioner admitted his “counsel may not have been ineffective in failing to conduct a reasonable pr[e]-trial investigation” but urged that counsel was ineffective during “the suppression hearing where counsel failed to address the real facts in regards to the CRT officer's probable cause to prolong a civil traffic stop, and challenge the nature of their surveillance.” Id. at 13.
On July 31, 2023, the court of appeals denied Petitioner relief reasoning:
¶6 We initially note that Majalca's petition for review is, for the most part, a verbatim copy of his petition for post-conviction relief. In addition, Majalca
does not state why he believes the trial court improperly dismissed his petition, much less explain how it abused its discretion by doing so. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must contain “reasons why the appellate court should grant the petition”); State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015) (“We review a trial court's denial of post-conviction relief for abuse of discretion.”). Although these factors alone are sufficient reason to deny review, in our discretion, we do not do so. See Ariz. R. Crim. P. 32.16(k) (describing appellate review under Rule 32.16 as discretionary); see State v. French, 198 Ariz. 119, ¶ 9 (App. 2000) (summarily rejecting claims not complying with rule governing form and content of petitions for review), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10 (2002); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶7 Insofar as Majalca claims that his Fourth Amendment rights were violated at the suppression hearing, as the trial court correctly noted, this claim is precluded because we decided it on the merits on appeal. See Majalca, 251 Ariz. 325, ¶¶ 11, 23; see also Ariz. R. Crim. P. 32.1(a), 32.2(a)(2). In our opinion on appeal, we specifically determined that the court correctly denied the motion to suppress, finding that the traffic stop in this case was permissibly prolonged. Majalca, 251 Ariz. 325, ¶¶ 23-24. We noted that the officers had “independent reasonable suspicion to detain Majalca to wait for the canine unit to arrive” and, therefore, no Fourth Amendment violation occurred. Id. at ¶¶ 19-24 & 20.
¶8 And, to the extent Majalca also asserts that counsel was ineffective for failing to adequately represent him at the suppression hearing, we conclude the trial court properly rejected that claim. Indeed, as previously noted, the court summarized trial counsels' extensive efforts to present these claims on behalf of Majalca, both at the pretrial stage and upon filing and supporting two motions to suppress. We thus find no abuse of discretion in the court's denial of post-conviction relief.State v. Majalca, No. 2 CA-CR 2023-00936-PR, 2023 WL 4858009, at *2 (Ariz. App. Div. 2 July 31, 2023). Petitioner did not seek review in the Arizona Supreme Court.
Habeas Proceeding
On August 22, 2023, Petitioner filed his Petition alleging three grounds for relief. In Ground One, Petitioner alleges that his Fourth Amendment rights were violated when the officer extended the traffic stop to allow time for the canine unit to arrive. (Doc. 1 at 6.) In Ground Two, Petitioner alleges that his Fourth and Fourteenth Amendment rights were violated because he was denied his right to representation by competent and effective counsel at every critical stage of the proceedings. Id. at 7. In Ground Three, Petitioner alleges he was denied a full and fair hearing regarding his Fourth Amendment claim. Id. at 8. He requests an evidentiary hearing. Id. at 11. On November 28, 2023, Respondents filed their Limited Answer to Petition for Writ of Habeas Corpus (“Answer”). (Doc. 10.) On January 16, 2024, Petitioner filed Petitioner's Reply to Respondent's (sic) Limited Answer to Petition for Writ of Habeas Corpus (“Reply”). (Doc. 13.)
This Court construes Petitioner's claim in Ground Two as arising under the Sixth and Fourteenth Amendments. See Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding that the Sixth Amendment guarantees “the fundamental right of the accused to the aid of counsel in a criminal prosecution.”) To the extent Plaintiff alleges a Fourth Amendment claim in Ground Two, as more fully explained herein, this Court finds that it is barred from habeas review for the same reasons that it finds Petitioner's Fourth Amendment claims alleged in Grounds One and Three are barred from habeas review.
The AEDPA Applies to the Petition
The Petition, filed after April 24, 1996, is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000). Under 28 U.S.C. § 2254(a), a district court may only entertain applications for writ of habeas corpus “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). As more fully explained below, this Court finds that Grounds One and Three alleging violations of the Fourth Amendment are non-cognizable on habeas review. Ground Two alleging that Petitioner received IAC is procedurally defaulted without excuse and barred from habeas review.
Petitioner's Fourth Amendment Claims are Non-Cognizable
In Grounds One and Three of his Petition, Petitioner urges that his Fourth Amendment rights were violated when his traffic stop was extended to allow for the canine unit to arrive and that he was denied a full and fair hearing on his Fourth Amendment claim. (Doc. 1 at 6, 8.) “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 482 (1976); see also Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (holding that the habeas court is “barred by the Stone doctrine from considering [the petitioner]'s claim if he had a ‘full and fair opportunity' to litigate his Fourth Amendment claims in the state courts.”). “The relevant inquiry is whether [the] 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 determining whether there has been a full and fair opportunity for a habeas petitioner to have litigated his Fourth Amendment claim, courts have considered “the extent to which the claims were briefed before and considered by the state trial and appellate courts.” Terrovona v. Kincheloe, 912 F.2d 1176, 1178-79 (9th Cir. 1990). “Consequently, once it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief.” Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).
In his initial motion to suppress, Petitioner argued that the traffic stop lacked reasonable suspicion and that the stop was unconstitutionally prolonged. (Doc. 10-1 at 12-18.) Petitioner later filed a second motion to suppress again arguing that officers lacked reasonable suspicion for the traffic stop and that the traffic stop was unlawfully prolonged. Id. at 47-50. The trial court held a two-day evidentiary hearing on Petitioner's suppression motions during the course of which the court, inter alia, took testimony from one sergeant, three officers, and Petitioner. Id. at 73-74, 76. As reflected by the evidentiary hearing transcripts, Petitioner had the opportunity to cross-examine witnesses, present witnesses, testify, and argue his suppression motions. See generally, Doc. 10-2 at 98-179 (evidentiary hearing transcript day one), 181-229 (evidentiary hearing transcript day two). The trial court found that the officers had reasonable suspicion to conduct the traffic stop and that the traffic stop was not unlawfully prolonged reasoning:
Here, law enforcement testified that Defendant was observed failing to come to a complete stop at a flashing red signal over a crosswalk and was observed driving through a private parking lot to avoid a traffic control signal. Defendant denied committing either violation. Having considered the testimony and the evidence, the State has shown by a preponderance of the evidence that the stop was supported by reasonable suspicion.
Defendant's traffic stop lasted for approximately 25 (twenty-[five] minutes). Officer Holderness testified that the time for this stop fell into an average time frame for a civil traffic stop. Additionally, the video of the stop reveals that the HGN test and the multiple checks of insurance extended the stop by no more than two (2) minutes. To the extent the stop was delayed for unrelated reasons, it appears that such delays were de minimis. Accordingly, the traffic stop was supported by reasonable suspicion and was not delayed for an unreasonable time period.(Doc. 10-1 at 79-80.) On Petitioner's direct appeal, after reviewing the evidence presented at the suppression hearing, the court of appeals held that the trial court did not err in denying Petitioner's motions to suppress. The court of appeals determined that officers had two independent reasons to detain Petitioner-officer observed traffic-violations and reasonable suspicion of criminal activity from earlier surveillance-and that the traffic stop was not unconstitutionally prolonged. Majalca, 251 Ariz. at 330-31, ¶¶ 19-23, 491 P.3d at 1137-38. Petitioner included his Fourth Amendment claim in his pro se PCR petition. (Doc. 10-1 at 261-70.) The PCR court found Petitioner's Fourth Amendment claim precluded under Rule 32.2(a)(2), Ariz. R. Crim. P., because the claim had already been decided on Petitioner's direct appeal. See Majalca, 2023 WL 4858009, at *2, ¶7 (holding that “[i]n our opinion on appeal, we specifically determined that the court correctly denied the motion to suppress, finding that the traffic stop in this case was permissibly prolonged. Majalca, 251 Ariz. 325 ¶¶ 23-24. We noted that the officers had ‘independent reasonable suspicion to detain Majalca to wait for the canine unit to arrive' and, therefore, no Fourth Amendment violation occurred.' Id. ¶¶ 19-24 & 20.”)
In light of the foregoing, this Court finds that the record fails to demonstrate circumstances “that imply [a] refusal by the state judiciary to take seriously its obligation to adjudicate claims under the fourth amendment.” Miranda v. Leibach, 394 F.3d 984, 998 (7th Cir. 2005). To the contrary, the record demonstrates that Petitioner filed two motions to suppress which were heard by the trial court over the course of a two-day evidentiary hearing. The trial court denied Petitioner's two motions to suppress after a thorough consideration of the evidence presented at the two-day evidentiary hearing. Petitioner appealed the trial court's denial of his suppression motions. The court of appeals reviewed the record and affirmed the trial court's denial of Petitioner's suppression motions. In ruling on Petitioner's PCR petition, the PCR court subsequently recognized the trial court and court of appeals' thorough consideration of his suppression motions.
In his Reply, Petitioner urges that the “State court denials of his habeas claims are contrary to, and result from[,] an unreasonable determination of[] clearly established law as promulgated by the U.S. Supreme Court[] and are the product of an unreasonable determination of facts.” (Doc. 13 at 2.) He argues that the trial court abused its discretion when it denied his motions to suppress, thereby “resulting in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Id. at 3. He agrees now, however, that there was reasonable suspicion “to pull [him] over for a traffic violation because at that time [he] did[not] know [that] cutting through a parking lot was a traffic offense.” Id. at 11. He urges only that officers lacked reasonable suspicion to prolong the stop.
See Id. (stating “[h]owever[,] I contend there was reasonable suspicion to prolong the stop.”). This Court construes Petitioner's statement to be that he contends that officers did not have reasonable suspicion to prolong the traffic stop.
As set forth above, Petitioner brought two motions to suppress and thus took full advantage of his ability to bring his Fourth Amendment claim in the state courts. The trial court held a two-day evidentiary hearing on Petitioner's motions to suppress. The court of appeals reviewed the record below and upheld the trial court's denial of the motions to suppress. This Court finds that Petitioner's Fourth Amendment claim was thoroughly examined by the trial court and court of appeals. Indeed, Petitioner's Fourth Amendment arguments go to the correctness of the state courts' resolution of his Fourth Amendment claim rather than the fullness and fairness of the opportunity to litigate his Fourth Amendment claim. Thus, Petitioner's grounds for relief based on the Fourth Amendment are barred by Stone v. Powell. See Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir. 1993) (holding that “[t]o be eligible for habeas relief on Fourth Amendment claims, a petitioner must demonstrate that the state court has not afforded him a full and fair hearing on those claims. We read Stone as a categorical limitation on the applicability of fourth amendment exclusionary rules in habeas corpus proceedings.”) (internal citation omitted).
In sum, this Court finds that the record establishes that Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. Accordingly, this Court determines that Petitioner's Fourth Amendment claim for relief alleged in Grounds One and Three of the Petition is non-cognizable on habeas review.
Petitioner's IAC Claim is Unexhausted and Procedurally Defaulted
Petitioner claims in Ground Two that his Sixth and Fourteenth Amendment rights were violated when he was “denied the constitutional right to representation by a competent and effective lawyer at every critical stage of the proceeding.” (Doc. 1 at 7.) He urges that his counsel failed to address “the real facts” pertaining to the officers' probable cause development and that an officer and a sergeant lied about surveilling him prior to his arrest. Id. He asserts that the officers relied on a vague and uncorroborated tip that the CRT contacted after his arrest. Id. He challenges the Rule 15 officer interviews claiming that some of the officers who, according to him, were truthful their Rule 15 interview were not available at the suppression hearing. Id. He also claims that he was not under investigation prior to the traffic stop that led to his arrest. Id.
As more fully explained below, this Court finds that Petitioner failed to invoke one complete round of state court review proceedings with respect to his IAC claim alleged in Ground Two. Thus, this Court finds that the IAC claim alleged in Ground Two is unexhausted and procedurally defaulted.
Exhaustion
A federal court may only consider a petitioner's application for a writ of habeas corpus if “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991). Exhaustion requires a petitioner to “fairly present” his federal claims to the trial court and thereafter “invok[e] one complete round of the State's established appellate review process,” presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a [PCR] petition . . . pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). A petitioner must then present his claim to the Arizona Court of Appeals. See Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005) (holding that in non-capital cases “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999))).
A claim is fairly presented when a petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Jean v. Shinn, No. CV-19-00439-TUC-JGZ (EJM), 2020 WL 13560056, at *6 (D. Ariz. Dec. 31, 2020), report and recommendation adopted, No. CV-19-00439-TUC-JGZ, 2022 WL 4535418 (D. Ariz. Sept. 28, 2022) (citing 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)). A habeas petitioner bears the burden of showing that he has exhausted his state court remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Procedural Default
A claim is procedurally defaulted and generally barred from federal habeas review if a petitioner fails to present his claim to the state courts in a procedurally appropriate manner. Jean, 2020 WL 13560056, at *6 (citing Ylst v. Nunnemaker, 501 U.S. 797, 80205 (1991)). A claim may be procedural defaulted in two manners. First, a claim may be procedurally defaulted if it was actually raised in state court but found by the state court to be defaulted on state procedural grounds. Jean, 2020 WL 13560056 at *6 (citing Coleman, 501 U.S. at 729-30.) Second, a claim may be procedurally defaulted if a 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.” Jean, 2020 WL 13560056 at *6 (citing Coleman, 501 U.S. at 735 n.1.) See also O'Sullivan, 526 U.S. at 848 (recognizing that when the time for filing a state court petition has expired, a petitioner's failure to timely present claims to the state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (holding that failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes where state court's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims).
Generally, a procedurally defaulted claim is generally barred from habeas review because an attempt to return to state court to present it is futile unless the claim fit into a narrow category of claims for which a successive PCR petition is permitted. See, e.g., Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b), 33.1(b)-(h), and 33.2(b)(1) (limited successive PCR petitions to claims of: lack of subject matter jurisdiction; sentence not authorized by law or plea agreement; custody continues or will continue beyond sentence's expiration; newly-discovered material facts; defendant not at fault for failure to file a timely PCR notice; significant change in the law would probably overturn conviction or sentence; actual innocence).
Exhaustion Analysis of Petitioner's IAC Claim
To exhaust a claim, the claim must be “fairly presented]” in state court to provide the state court an opportunity to act on it. Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). A claim has not been fairly presented in state court if new factual allegations either “fundamentally alter the legal claim already considered by the state courts,” or “place the case in a significantly different and stronger evidentiary posture than it was when the state court[] considered it.” Dickens, 740 F.3d at 1318. (internal citations omitted.) A petitioner fairly presents his claim in state court if his state court claim describes both the same set of operative facts and the applicable law. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001).
This Court finds that Petitioner did not fairly present the factual basis for his IAC claim in both his PCR petition and in his petition for review of the trial court's denial of his PCR petition. In Ground Two of his Petition, Petitioner alleges that he was “denied the constitutional right to representation by a competent and effective lawyer at every critical stage of the proceeding.” (Doc. 1 at 7.) He urges that his counsel was ineffective during the suppression hearing in failing to address “the real facts in regards to the officer's (sic) probable cause to prolong a civil traffic infraction[.]” Id. He contends that his counsel was ineffective in failing to address “the fact that the CRT officer . . . lied about having the residence [he] was seen leaving under surveillance for drug activity[.]” Id. He urges counsel was ineffective in failing to address that “CRT officers relied upon a vague and uncorroborated tip[.]” Id. He urges counsel was ineffective in failing to “address the Rule 15 interviews at the suppression hearing or insist that the suppression hearing be held when all the CRT officers could be available[.]” Id. He urges that counsel was ineffective by failing to address (1) alleged lies from the CRT sergeant regarding surveilling Petitioner; (2) that there, according to Petitioner, were no reports to corroborate officers' claims other than the allegedly vague and uncorroborated tip; and (3) that there was no on-going investigation of Petitioner. Id.
The IAC claim that Petitioner presented to the trial court was different than the claim he raises in his Petition. In his IAC claim to the PCR court he asserted:
Petitioner's councel (sic) was ineffective in failing to conduct a reasonable pre-trial investigation. This violated petitioner's right to councel (sic) as guaranteed by Amendments 6 and 14 to the U.S. Constitution, see Wiggins v. Smith, 539 U.S. 510 (2003)[.]
If private councel (sic) would have looked into these interviews conducted by the Public Defender of these officers, and given the circumstances, he
would have demanded a probable cause hearing. Because there wasn't one I was denied a full and fair hearing on my 4th Amendment claim. As effective councel (sic), given the circumstances, would have demanded a probable cause hearing. My private counsel didn't even so much as cross examine these officers in the suppression hearing, This caused prejudice to my 4thAmendment claim.(Doc. 10-1 at 269.) In his petition for review of the PCR court's denial of his PCR petition, Petitioner alleged that he received IAC at the evidentiary hearing on his motions to suppress because his counsel failed to address “the real facts” regarding the officers' development of probable cause, failed to address the Rule 15 interviews, failed to cross-examine the officers at the hearing, and failed to insist that all the officers involved participate in the suppression hearing. (Doc. 10-2 at 13.) The court of appeals held that the PCR court properly rejected Petitioner's IAC claim wherein he attacked his counsel's representation before and during the suppression hearing. The court of appeals further found:
In addition, although Majalca argued in his Rule 32 petition that his attorney ‘was ineffective in failing to conduct a reasonable pre-trial investigation,' he now argues that ‘[a]dmittedly petitioner's counsel may not have been ineffective in failing to conduct a reasonable pr[e]-trial investigation,' but nonetheless maintains that counsel did not effectively represent him at the suppression hearing. He contends that if counsel had done so, the outcome would have been different, and asks that we ‘consider the facts that were suppressed from that suppression hearing.' To the extent he is presenting a new argument, albeit one related to the claim he previously raised in his petition below, we do not consider it. See Ariz. R. Crim. P. 32.16(c)(4) (‘failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue'); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).Majalca, 2023 WL 4858009, at *2, ¶1. Thus, the court of appeals recognized that Petitioner presented new grounds for relief in his petition for review that he had not alleged in his PCR petition.
As recognized by the trial court, Petitioner's PCR petition alleged only that his trial counsel rendered ineffective assistance in failing to conduct a reasonable pretrial investigation and demand a probable cause hearing. (Doc. 10-1 at 310.) Petitioner's petition for review expanded the scope of his IAC claim in alleging that he received ineffective assistance because his counsel “failed to address the real facts in regards to the officers[‘] probable cause.” (Doc. 10-2 at 7.) Petitioner also claimed that he suffered ineffective assistance when his counsel failed to challenge the nature of officers' surveillance, failed to cross-examine the officers and failed to insist that the suppression hearing be held when all officers could be present. Id. at 13. Ground Two of the Petition expands the scope of Petitioner's claim of IAC even more in that Petitioner makes claims of ineffectiveness based on counsel's alleged failing to address: (1) “ . . . that the CRT officer . . . lied about having the residence [he] was seen leaving under surveillance for drug activity”; (2) that “CRT officers relied upon a vague and uncorroborated tip”; (3) the Rule 15 interviews at the suppression hearing or insist that the suppression hearing be held when all the CRT officers could be available; (4) alleged lies from the CRT sergeant regarding surveilling Petitioner; (5) that there were no reports to corroborate officers' claims other than the allegedly vague and uncorroborated tip; and (6) that there was no on-going investigation of Petitioner. (Doc. 1 at 7.)
In light of the foregoing, this Court finds that Petitioner did not fairly present the factual basis for the IAC claim alleged in Ground Two of his Petition in both his PCR petition and in his petition for review of the trial court's denial of his PCR petition. See Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (holding that 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.); Moormann v. Schriro, 426 F.3d 1044, 1056-57 (9th Cir. 2005) (holding that new allegations of IAC not previously raised before the state court cannot be addressed on habeas review).
In his Reply, Petitioner urges that he “did at least make general allegations of his councels (sic) lack of representation, preparing for, and during the suppression hearing, including cross examining the officers at the suppression hearing to the PCR court in his Rule 32 petition.” (Doc. 13 at 17.) It is true that Petitioner presented a portion of the IAC claim that he alleges in Ground Two in the court of appeals. Petitioner alleged in his appellate court petition for review that he suffered ineffective assistance when his counsel failed to: (1) challenge the nature of officers' surveillance; (2) cross-examine the officers; and insist that the suppression hearing be held when all officers could be present. However, this Court finds that Petitioner did not present the IAC claim that he alleges in Ground Two of his Petition throughout one entire judicial post-conviction process available to him in the state court below, i.e., in both the trial and appellate courts. Although Petitioner expanded his IAC claim in his petition for review before the court of appeals, exhaustion requires that he fairly present his entire IAC claim to each state court in a procedurally appropriate manner. Baldwin, 541 U.S. at 29. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (recognizing that “a petitioner satisfies the exhaustion requirement if he properly pursues a claim . . . throughout one entire judicial post-conviction process available in the state.”).
Because Petitioner did not present the entirety of the IAC claim that he alleges in Ground Two to both the trial court and the court of appeals, this Court finds that Petitioner's IAC claim alleged in Ground Two is unexhausted. This Court also determines that Petitioner's unexhausted IAC claim does not fit within the narrow category of claims for which a successive PCR petition is permitted and this claim is, therefore, unexhausted and procedurally defaulted.
Excuse of Petitioner's Unexhausted and Procedurally Defaulted IAC Claim
A federal habeas court may review the merits of a procedurally defaulted claim only if the petitioner proves either “cause and prejudice” or a fundamental miscarriage of justice by establishing his actual innocence. Coleman, 501 U.S. at 750. To establish “cause,” a petitioner must demonstrate that “some objective factor external to the defense impeded [petitioner's efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “Prejudice” requires a showing that the alleged constitutional violation worked to the prisoner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). (emphasis omitted). To establish a “fundamental miscarriage of justice,” a petitioner must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual innocence means factual innocence, not legal insufficiency of the evidence. Bousley v. United States, 523 U.S. 614, 623-24 (1998); see also United States v. Ratigan, 351 F.3d 957, 965 (9th Cir. 2003).
This Court finds there are no grounds upon which it can recommend that the district court excuse Petitioner's procedural default of this IAC claim. First, Petitioner does not claim actual innocence in either his Petition or his Reply. (Doc. 1, 13.) Second, Petitioner fails to present anything from which this Court could find that cause and prejudice exists such that the district court may excuse the procedural default of his claims. See Id. Instead, Petitioner's argument is exclusively focused on the alleged exhaustion of his IAC claim. (Doc. 13 at 17.)
Accordingly, this Court finds that the procedural default of Petitioner's IAC claim alleged in Ground Two is without excuse.
Evidentiary Hearing
Petitioner requests an evidentiary hearing. (Doc. 1 at 11; Doc. 13 at 17-20.) The AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing” and limits “considerably the degree of the district court's discretion” to order such a hearing. Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (quoting Cardwell v. Greene, 152 F.3d 331, 336 (4th Cir. 1998)). Section 2254(e)(2), 28 U.S.C., controls whether a petitioner may receive an evidentiary hearing in district court on claims that were not developed in the state courts. See Williams v. Taylor, 529 U.S. 420, 429 (2000).
As to Petitioner's unexhausted claim alleged in Grounds Two, the AEDPA bars a hearing:
unless [Petitioner] shows that -
(A) the claim relies on -
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (citing 28 U.S.C. § 2254(e)(2)(A)(ii)-(B)). “Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Williams, 529 U.S. at 437. If the prisoner fails to diligently develop his claim in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements (set forth in § 2254(e)(2)) are met. Id. Even if a prisoner satisfies 28 U.S.C. § 2254(e)(2)'s requirements, the district court is not required to grant an evidentiary hearing. See Downs, 232 F.3d at 1041 (holding that “even assuming Downs's claim could clear the hurdle posed by § 2254(e)(2), the fact that a hearing would be permitted does not mean that it is required. The district court retains discretion whether to hold one.”).
This Court finds that Petitioner was not diligent in presenting his IAC claim in Ground Two in the state courts. As demonstrated above, Petitioner failed to present the precise claim that he alleges in Ground Two of his Petition in the state courts. In light of Petitioner's failure to demonstrate diligence, this Court recommends that his request for an evidentiary hearing be denied.
Recommendation
For the reasons set forth above, this Court RECOMMENDS that the district court, after an independent review of the record, DISMISS the Petition. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-23-398-JCH. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).