Opinion
CV 21-01948 PHX DJH (CDB)
06-30-2022
Manuel Martinez, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE DIANE J. HUMETEWA, JUDGE.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STALES MAGISTRATE JUDGE.
Petitioner Manuel Martinez, proceeding pro se, seeks relief pursuant to 28 U.S.C. § 2254. Respondents answered the petition (ECF No. 11), and Martinez has docketed a reply (ECF No. 14).
I. Background
The Arizona Court of Appeals described the crimes of conviction and Martinez's state criminal proceedings as follows:
The crimes took place over the course of six weeks within a four-to-five-mile radius in Casa Grande. All five of the break-ins were somewhat similar. In each case, entry was gained by kicking an exterior door. All of the entries occurred during the day on a weekday. No residents were present at the time of the break-ins. No electronic items were taken from the homes. Shoe prints were found at each location; however, at three of the locations the impressions were made by Nike or Skechers brand shoes “of the same size, of the same general type,” whereas the other two were made by Converse brand shoes. [footnote 3: When he was arrested, Martinez was wearing Converse shoes that were “a match” to the prints at the two homes. There was no evidence he owned or possessed Nikes or Skechers.] At two of
the locations, Martinez was seen driving a brown or tan car near the crime scenes close in time to the break-ins. Nothing was taken from some of the homes. Jewelry was taken from others. A gun was stolen from one.
Charges arising from each of the burglaries were joined in the same indictment. Before trial, Martinez filed a motion to sever pursuant to Rule 13.4, Ariz. R. Crim. P., arguing he was entitled to severance because the offenses were “inadmissible prior or subsequent bad acts to each other.” The trial court denied his motion. Martinez filed a motion to reconsider, which the court denied as well, agreeing with the state that evidence of the separate offenses would be cross-admissible under Rule 404(b), Ariz. R. Evid., to prove modus operandi. Martinez did not renew his motion for severance at trial. He was convicted of seven offenses relating to the home entries ...State v. Martinez, 2018 WL 2771059, at *1-2 (Ariz.Ct.App. June 8, 2018) (some footnotes omitted). Martinez was convicted of one count of burglary in the first degree, three counts of burglary in the second degree, two counts of criminal damage, and one count of theft, and sentenced to an aggregate term of 38 years' imprisonment. (ECF No. 11 at 2-3).
“Martinez was originally indicted for three of the burglaries . in three separate cases on November 2, 2011. He was arraigned on all three cases on November 10, 2011.” (ECF No. 11-1 at 199). “On July 23, 2012, the State re-indicted Martinez on a single indictment of 9 counts to include burglary in the first degree, burglary in the second degree, criminal damage, criminal trespass and theft covering the original three cases and the addition of two other cases.” (ECF No. 11-1 at 200). Martinez was originally represented by Mr. Larson, who moved for and received leave to hire a defense investigator. (Id.). In March of 2013 Larson moved to withdraw, asserting Martinez “was now questioning his competence,” and Mr. Volkmer was appointed as Martinez's counsel. (Id.). Volkmer withdrew due to a conflict and Mr. Sauceda was appointed. (Id.). A plea agreement was proffered, providing for a sentence in the range of 6.5 to 13 years' imprisonment, which was explained to Martinez during a Donald hearing on November 1, 2013. (Id.). “Martinez unequivocally informed the court that he understood the plea and that he was rejecting it.” (Id., citing a transcript of the hearing). The offer remained “on the table” until the final pretrial conference. (ECF No. 11-1 at 200 n.1). On July 6, 2015, Mr. Green was appointed as co-counsel to Mr. Sauceda, and Mr. Sauceda withdrew as counsel two months later. (ECF No. 11-1 at 201). Trial commenced on January 5, 2016. (ECF No. 11-1 at 201).
Martinez appealed his convictions, asserting “. the court abused its discretion in denying his motions for severance and that the failure to sever the offenses constituted fundamental error affecting his due process right to a fair trial.” Martinez, 2018 WL 2771059, at *2. The appellate court, applying state rules of criminal procedure and reviewing for fundamental error, concluded:
With the exception of the charges arising out of the burglaries on Jahns Place (Counts 5, 6 & 7) and Rodeo Road (Count 2), where Martinez was seen driving a brown or tan car, the trial court erred in denying the motion to sever. Although the offenses bore certain similarities, notably, they were all “door-kick” daytime residential burglaries when residents were absent, those similarities are not so unique as to give rise to the inference that they were likely committed by the same person. See State v. Latino, 25 Ariz.App. 66, 70 (1975). Similarly, leaving behind electronics in favor of taking smaller, more concealable and presumably less traceable items, such as jewelry, does not rise to the level of what could be described as a signature crime. See State v. Hughes, 189 Ariz. 62, 68 (1997) (to establish identity through evidence of other acts, circumstances surrounding other acts must be sufficiently similar as to be like a signature). Even when considered together, these similarities “characterize many crimes without any other connection,” and we have previously concluded such similarities are an insufficient basis to refuse severance. State v. Garland, 191 Ariz. 213, ¶ 12 (App. 1998). We therefore conclude the trial court erred in denying the motion to sever.
Identity was the only disputed issue at trial. Martinez's brother testified he had committed at least some of the offenses, and he gave descriptions that were consistent with details of the crimes, including a description of an encounter one of the victims had with the intruder as he was leaving her residence. The trial court's error in failing to sever Counts 1, 4, and 8 went to the core of Martinez's false-identification defense and was of such magnitude as to constitute fundamental error. [footnote 5: Counts 3 and 9 should have been severed as well, however those counts were dismissed at the close of the state's case.]
In order for Martinez to prevail, it is not enough that he establish fundamental error. He must also demonstrate resulting prejudice. Henderson, 210 Ariz. 561, ¶ 20. “Fundamental error review involves a fact-intensive inquiry, and the showing required to establish prejudice therefore differs from case to case.” Id. ¶ 26. And “the prejudicial nature of the ... error must be evaluated in light of the entire record.” State v. Thomas, 130 Ariz. 432, 436 (1981). The error in this case involved the denial of severance, so Martinez “must demonstrate compelling prejudice against which the trial court was unable to protect.” State v. Goudeau, 239 Ariz. 421, ¶ 67 (2016), quoting State v. Murray, 184 Ariz. 9, 25 (1995). Because the trial court's error resulted in the admission of otherwise inadmissible evidence, we look to the effect of that evidence on the jury's verdict. See Thomas, 130 Ariz. at 436 ....
With respect to Count 1, the break-in was captured on video, which was played for the jury. The person depicted was similar in profile to Martinez and had a scar similar to his. As to Count 8, police recovered a baseball cap from the backyard of the residence. Most of the DNA found on
the cap matched Martinez. As to those counts, the independent evidence of identification made it highly unlikely that the admission of evidence relating to the other offenses would have affected the jury's verdict. See id. Moreover, the jury was properly instructed to consider the evidence for each offense separately. See Goudeau, 239 Ariz. 421, ¶ 67; State v. Comer, 165 Ariz. 413, 419 (1990) .... We presume the jury followed the court's instructions. State v. Martinez, 230 Ariz. 208, ¶ 40 (2012).
As to Judi Drive (Count 4), however, other than the presence of a Converse shoe print, there was no evidence to tie Martinez to the crime. The state never presented expert testimony to establish the footprints found at the crime scene for Count 4 were an exact match to the shoes Martinez was arrested in. Instead, the strongest evidence of identification based on the shoe print came from a police detective who testified the shoe print found at the crime scene was “consistent” with the print of the shoes Martinez was arrested in. The detective also testified, however, that a new pair of shoes would have left a “similar” print.
Particularly when viewed in light of the entire record, see Thomas, 130 Ariz. at 436, which presented substantial evidence of identification as to the other burglaries, the evidence of other acts resulted in compelling prejudice as to Count 4. And, given the scant evidence of identification offered in support of that offense, we cannot say the other acts evidence did not contribute to or substantially affect the jury's verdict, see id., notwithstanding our general presumption of limiting instruction efficacy, see Martinez, 230 Ariz. 208, ¶ 40. Accordingly, we conclude that Martinez has established both fundamental error and prejudice as to that offense.Id. at *2-3 (some footnotes omitted). The appellate court vacated Martinez's conviction on Count 4 and remanded the matter to the trial court for any further proceedings; the appellate court affirmed Martinez's convictions and sentences “[i]n all other respects.” Id. at *4.Martinez filed a petition for review with the Arizona Supreme Court (ECF No. 11-1 at 10982), which was denied on November 19, 2018 (ECF No. 11-1 at 184).
The record in this matter and the information available on the Arizona Department of Corrections, Rehabilitation, and Reentry's Inmate Datasearch database indicate Martinez was not retried on Count 4.
The Arizona Court of Appeals, granting review but denying relief in his state postconviction action, described Martinez's post-conviction proceedings as follows:
Martinez initiated a proceeding for post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had
found no colorable claims to raise in a Rule 32 petition. In his subsequently filed pro se petition, Martinez asserted numerous claims, including that trial counsel had been ineffective in failing to 1) advise him regarding a plea agreement; 2) raise issues regarding the destruction of a pair of shoes seized as evidence and other evidence gathered by a crime-scene technician who resigned in lieu of being terminated from the police department after an internal investigation in an unrelated case; 3) file various motions, including a renewal of the request to sever and motions related to DNA testing of evidence; 4) investigate, subpoena witnesses, and present a defense; and 5) retain a mitigation specialist. [footnote 2: During the pretrial, trial, and sentencing proceedings, Martinez was represented by four attorneys. We refer to them collectively here.] He also raised constitutional challenges, including that the denial of his motion for change of judge violated his due process rights.
The trial court summarily dismissed Martinez's petition. It found certain claims precluded “because they could have been raised on appeal” and the remainder of the claims “not colorable.” This petition for review followed.
On review, Martinez repeats several of his claims of ineffective assistance of trial counsel. Specifically, he argues that counsel was ineffective in failing to advise him regarding the plea, to raise issues related to the pair of shoes and a hat seized as evidence, to renew the motion to sever, to challenge evidence gathered by the crime-scene technician who resigned, to secure defense witnesses, and to retain a mitigation specialist. He does not, however, identify any legal or factual error in the trial court's rejection of those claims.
In its thorough, well-reasoned ruling, the trial court clearly identified Martinez's ineffective assistance of counsel claims and correctly resolved them in a manner that will allow any court in the future to understand. Because the court's findings and conclusions are supported by the record before us, we need not repeat that analysis here and, instead, adopt it. [footnote 3: In its ruling, the trial court noted there was a hearing during which Martinez “acknowledged he understood the plea offer, and he expressly rejected it.” The court, however, cited an incorrect date; that hearing was held on November 1, 2013.] ...
Martinez also argues that trial counsel was ineffective in failing to challenge his indictment as duplicitous and to investigate his competency to stand trial. He also seems to suggest the state did not comply with disclosure requirements under Rule 15.1, Ariz. R. Crim. P. However, Martinez did not raise these arguments below. We therefore do not consider them for the first time on review. See Ariz. R. Crim. P. 32.16(c)(2)(b) (appellate court reviews issues presented to trial court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).
Lastly, Martinez contends the judge who presided over his trial was biased and should have recused himself. To the extent this argument is based on the denial of his motion for change of judge, we agree with the trial court that any such claim is precluded. See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3). However, to the extent Martinez is asserting a standalone claim of judicial bias because the same judge [White] ruled on his Rule 32 proceeding, he has not indicated under which Rule 32.1 ground for relief his claim falls. And although Rule 32.10(a) allows a defendant to request a change of judge in post-conviction proceedings, it does not apply here, where the sentencing judge presides over those proceedings. See Ariz. R. Crim. P. 10.1, 32.10(a).State v. Martinez, 2020 WL 2844494, at *2 (Ariz.Ct.App. June 2, 2020). The Arizona Supreme Court denied review on December 11, 2020 (ECF No. 1-3 at 2-48, 49).
The petition is at ECF No. 1-1 at 2-57.
Martinez's petition for review in his state post-conviction action is attached to his petition. (ECF No. 1-2 at 2-34). He asserted counsel was ineffective because: (1) counsel failed to properly advise him regarding a proffered plea deal; (2) counsel failed to move to suppress photographic evidence regarding the shoes which “may have been excluded through DNA testing;” (3) counsel failed to object to the “joinder of offenses” and move for severance (also alleging “duplicitous indictments may also violate defendant's constitutional right to notice of charges or hinder the defendant's ability to argue double jeopardy in a subsequent prosecution”); (4) counsel “failed to provide evidence/disclosure due to counsel's reluctance to file ‘MOTION FOR DISCOVERY'” regarding the “seized ‘hat'” for an independent DNA test, which test he asserts was necessary because of “internal corruption within the Casa Grande Police Dept.;” (5) counsel “failed to secure defense witnesses in specific [sic] a Mr. Tim Jeter,” who lived near the “Kartchner burglary” and who told the police he “noticed a subject by the name of Eli during the time frame in which the burglary occurred;” (6) counsel failed to make sufficient inquiry into Martinez's competency prior to trial, because Martinez “endures an intellectual disability,” in violation of his right to due process; (7) counsel failed to retain a mitigation specialist at sentencing. Martinez also argued the presiding judge was biased because their judicial assistant was related to one of the victims.
On April 22, 2021, Martinez filed a second petition for state post-conviction relief, alleging his pretrial, trial, and sentencing counsel failed to assert Martinez was incompetent at all “critical” stages of his criminal proceedings, including sentencing, based on purported newly discovered evidence of “life[-]long learning disabilities.” (ECF No. 11-2 at 87-101). Martinez asserted his procedural default of this claim was excusable, citing Martinez v. Ryan, 566 U.S. 1 (2012). (ECF No. 11-2 at 92). On June 14, 2021, the trial court summarily dismissed the petition, concluding the claim was precluded under Arizona Rule of Criminal Procedure 32.2. (ECF No. 11-2 at 103). Martinez did not appeal or seek review of the trial court's denial of post-conviction relief. Respondents aver Martinez's claims that he filed this petition in “April 2021” and that the “matter [is] still pending” are not supported by the record. (ECF No. 11 at 5, quoting ECF No. 1 at 10).
In his federal habeas petition Martinez asserts:
1. Trial counsel was ineffective because they failed to adequately advise Martinez regarding whether to accept a plea offer or proceed to trial.
2. Trial counsel was ineffective for failing to file a motion to suppress “DNA evidence” obtained from a blue Nike hat admitted into evidence, and for failing to file a motion to dismiss based on a technician's destruction of the Converse shoes taken from Martinez at the time of his arrest.
3. Trial counsel was ineffective for failing to timely file a renewed motion to sever, because “the impermissible joinder of offense had created a substantial determination.”
4. Trial counsel was ineffective for failing to file a motion for discovery and obtain a police technician's “integrity files.”
Martinez asserts in his federal petition:
4. Evidence/Disclosure
Appointed counsel was ineffective through the failure of filing a “MOTION for DISCOVERY” to obtain “Integrity files” of the officer who handled/ processed evidence in regard to charged offense as the officer in question [] was forced into resignation due to evidence tampering and to further draw attention counsels [sic] failure to challenge DNA results due to internal corruption @ the Casa Grande Police Dept. ...”(ECF No. 1 at 5).
5. Trial counsel was ineffective for failing to subpoena an exculpatory witness.
6. Trial counsel was ineffective for failing to make sufficient inquiry into Martinez's competency prior to trial, and also failed to present mitigating factors through “an experienced mitigation specialist” at sentencing.
7. The trial judge's denial of his motion to sever and the imposition of an excessive sentence constitute judicial bias, in violation of his right to due process of law.
II. Governing Law
A. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement of the facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021), cert. denied, 142 S.Ct. 791 (2022); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). A claim has been fairly presented only if the petitioner has described in state court both the operative facts and the specific federal legal theory upon which he bases his claim in federal court. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Galvan v. Alaska Dep't of Corr., 397 F.3d 1198, 1205 (9th Cir. 2005). The petitioner must present both the same facts and the same legal theory to the state court for proper exhaustion. See, e.g., Duncan, 513 U.S. at 366 (holding a “mere similarity of claims is insufficient to exhaust.”); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (“State courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis.”). Additionally, the fair presentation requirement mandates that a state prisoner alert the appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004).
Additionally, with regard to Respondents' assertion that Martinez has procedurally defaulted some of his federal habeas claims in the state courts:
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An implied procedural bar may be applied to unexhausted claims where state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998); Date, 619 F.Supp.2d at 766. A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted and emphasis added). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
B. Standard of Review of Exhausted Claims
Pursuant to 28 U.S.C. § 2254(d)(1), the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas corpus relief to a state prisoner unless the petitioner demonstrates the state court's decision denying the claim presented to the federal court “was contrary to” or an “unreasonable application” of federal law as clearly established in the holdings of the Supreme Court at the time of the state court decision, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97-98 (2011). This standard is “difficult to meet.” Id. at 102. It is 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) (citation and internal quotation marks omitted).
A state court decision is contrary to federal law if it applied a rule contradicting the governing law established by United States Supreme Court opinions, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). A state court's decision is “contrary to” federal law if it applies a rule of law “that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Mitchell v. Esparza, 540 U.S. 12, 14 (2003) (citations omitted). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court's decision.'” Harrington, 562 U.S. at 101, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Under § 2254(d)(2), a federal court is relieved of AEDPA deference when a state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” To show such an error occurred, the petitioner must establish that the state court's decision rested on a finding of fact that is “objectively unreasonable.” Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004), quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “The question under AEDPA is not whether a federal court believes the state court's [factual] determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
A state-court decision “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 [] (2003) (emphasis added). “While ‘not impossible to meet,' that is a ‘daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.'” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) []. Thus, a “statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301[] (2010).Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016).
C. The Strickland Standard
The “clearly established” federal law regarding an ineffective assistance of counsel claim is stated in the United States Supreme Court's opinion in Strickland v. Washington. To establish that he was denied the effective assistance of counsel, a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. See id. at 687. Counsel's performance will be held constitutionally deficient only if the habeas petitioner proves counsel's actions “fell below an objective standard of reasonableness,” as measured by “prevailing professional norms.” Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010). To establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
On federal habeas review a Strickland claim adjudicated on the merits by a state court is reviewed under a “highly deferential” or “doubly deferential” standard. Atwood v. Ryan, 870 F.3d 1033, 1057 (9th Cir. 2017); Visciotti v. Martel, 862 F.3d 749, 770 (9th Cir. 2016). The “highly deferential” standard of review “‘requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'” Visciotti, 862 F.3d at 770, quoting Strickland, 466 U.S. at 689. The “doubly deferential” standard of review requires the habeas court applying Strickland to determine whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard†Harrington, 562 U.S. at 788 (emphasis added). Even if the Court could conclude on de novo review that the petitioner might satisfy both prongs of the Strickland test, the “AEDPA requires that a federal court find the state court's contrary conclusion” “objectively unreasonable before granting habeas relief.” Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (emphasis added). “Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Harrington, 562 U.S. at 105. Relief is warranted only if no reasonable jurist could disagree that the state court erred in its application of the Strickland analysis. See Cullen v. Pinholster, 563 U.S. 170, 188 (2011); Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014).
A petitioner bears the burden of demonstrating counsel's choices regarding the presentation of his defense constituted deficient performance and were prejudicial. See Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009); Rego v. Sherman, 704 Fed.Appx. 634, 638 (9th Cir. 2017); Lazo v. Clark, 387 Fed.Appx. 754, 755 (9th Cir. 2010). Additionally, it is well settled that “counsel's tactical decisions at trial ... are given great deference and must similarly meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006). Specifically, the decision to forgo the use of specific witness testimony is a matter of strategy within trial counsel's discretion. Matylinsky, 577 F.3d at 1092; Raley v. Ylst, 470 F.3d 792, 802 (9th Cir. 2006).
When considering whether a habeas petitioner was prejudiced by his counsel's alleged errors, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. When answering this question, the federal habeas court must necessarily consider the strength of the state's case against the petitioner. See Wainwright v. Sykes, 433 U.S. 72, 91 (1977); Djerf v. Ryan, 931 F.3d 870, 883 (9th Cir. 2019), cert. denied, 140 S.Ct. 2746 (2020); Allen v. Woodford, 395 F.3d 979, 999 (9th Cir. 2005) (“even if counsel's conduct was arguably deficient, in light of the overwhelming evidence of guilt, [the petitioner] cannot establish prejudice”). Additionally, with regard to the prejudice prong of the Strickland test, counsel's errors are only prejudicial if there is a “reasonable probability” that an error affected the outcome of the relevant proceedings. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. This standard requires a “substantial,” not just “conceivable,” likelihood of a different result. Harrington, 562 U.S. at 112.
III. Analysis of Petitioner's Claims for Relief
A. Ineffective Assistance of Counsel - Plea Agreement
Martinez contends his counsel failed to adequately advise him as to the proffered plea agreement. Martinez raised this claim in his petition for state post-conviction relief. In denying relief on this claim, the state habeas trial court found and concluded:
The primary focus of Martinez's claim of ineffective assistance of counsel is that his attorneys failed to adequately advise him regarding his plea offers. He asserts that if he had been adequately advised he would have accepted a plea agreement. As exposed by the State in its Response, the record completely contradicts this claim. As noted by the State, a Donald Hearing was conducted on November 11, 2013. At the Donald Hearing, the Defendant was advised of the terms of the plea agreement on the record. He acknowledged he understood the plea offer, and he expressly rejected it. []
Furthermore, Martinez's statements at sentencing tell a very different story than the one he spins in his Petition. [] The State quotes his statement at sentencing at length. In it, he fully acknowledges that he was aware of the plea offer made early in the case and was “dumb” for not signing it. [] He explains his motive for not taking the plea was essentially that he could not bear the thought of going to prison and leaving his family. [] He candidly admits that he was responsible for making the poor decision to go to trial, stating “... I misled myself. I don't know what I was thinking - I just wasn't ready to say goodbye to my family.” [] He further acknowledged that his attorney [Mr. Green] advised him during the trial that a plea offer to 10 years was still available but, in his words, “I still wasn't ready to say goodby.” [] He admitted that he lied to his wife and told her that he was facing substantially less time than he knew he was because [he] “couldn't hurt her heart like that.” []
His words in the record make clear that [Martinez] was aware of his exposure to a very lengthy prison sentence if convicted. They further reflect that he was aware of plea offers made by the State, and that he made a bad decision in not entering into a plea agreement. Solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63,74 [] (1977) - Martinez's claim that his attorneys failed to advise him adequately regarding the plea offer and his sentence exposure is “wholly incredible” and lacks any appearance of validity in light of the record. He therefore has failed to state a colorable claim.
Furthermore, based on his statements in the record, he suffered no prejudice, even if his attorneys did not advise him of every conceivable consideration regarding the plea offers made by the State. At sentencing, he acknowledged he knew he faced a prison sentence that could potentially keep him in prison for most, if not all, of the rest of his life. [] He fully admitted that his strategy, however, was to delay the case, stating,
I don't want to go to prison. That's why when I was out on bond, I never pushed for a speedy trial or pushed for a - or signed a plea bargain, because - because the longer I was out there, the better for me and my family and my kids.
... To establish prejudice in the rejection of a plea offer, a defendant must show “a reasonable probability that, absent his attorney's deficient advice, he would have accepted the plea offer” and declined to go forward to trial. [] In light of Petitioner's statements at sentencing, he has fallen far short of showing a reasonable probability he would have accepted any of the plea offers made by the state, regardless of what advice his counsel gave him. He has, therefore, failed to show prejudice.(ECF No. 11-2 at 48-49).
The Arizona Court of Appeals summarily adopted the state habeas trial court's findings and conclusions on this claim of ineffective assistance of counsel. When evaluating state court decisions on habeas review, federal courts look through summary or unexplained higher state court opinion to the last reasoned decision on the claim. E.g., Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). Accordingly, the Court must review the state habeas trial court's reasoning regarding the denial of this claim and determine if that decision was clearly contrary to or an unreasonable application of Strickland.
The state habeas trial court's denial of relief on this ineffective assistance of counsel claim was not clearly contrary to nor an unreasonable application of federal law, nor an unreasonable determination of the facts in light of the record before the court. The state habeas trial court determined Martinez was repeatedly advised of the terms of the proffered plea agreements and made a conscious decision to not accept any of the plea offers. The state habeas trial court also determined that Martinez was not prejudiced by any alleged deficient performance because he stated on the record at sentencing that he would not have accepted any plea bargain. Based on the record before the state court, there was no reasonable probability that Martinez did not know of the terms of the proffered plea agreement. Based on the record before the state court there was no reasonable probability that, but for his counsel's allegedly deficient advice, Martinez would have accepted a plea agreement rather than proceed to trial. Martinez does not present any clear and convincing evidence contradicting the state habeas court's findings of fact.
The trial court's credibility determination is entitled to a presumption of correctness because the state habeas court, as the convicting court, had observed Martinez's statements prior to and after conviction, including at sentencing. See Rice v. Collins, 546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing the record might disagree about [a witness's] credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.”); Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to re-determine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”).
Accordingly, the state court's determination that Martinez failed to establish he was denied the effective assistance of counsel because he failed to satisfy the prejudice prong of the Strickland analysis was not clearly contrary to nor an unreasonable application of federal law. Nor was the state court's adjudication of this claim an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
B. Ineffective Assistance of Counsel - DNA & Destruction of Evidence
Martinez contends his trial counsel was ineffective for failing to move to suppress evidence, i.e., DNA obtained from a blue Nike hat found at a crime scene. He also argues counsel failed to file a motion to dismiss the case based on a technician's destruction of the Converse shoes taken from Martinez at the time of his arrest. He argues “[t]he ‘DISPOSAL' of petitioners exculpatory evidence was in FACT prejudicial and counsel was deficient by failing to file a MOTION TO DISMISS.” (ECF No. 4 at 13). He further argues “[c]ounsel's error in not filing a motion to suppress and motion to dismiss may further establish a showing that counsel's representation fell below an objective standard of reasonableness ...” (Id.).
1. Martinez's claim regarding the shoes
Martinez contends his counsel was ineffective for failing to file a motion to dismiss based on the destruction of the Converse shoes taken from Martinez at the time of his arrest. In his state habeas petition Martinez asserted counsel was ineffective “for failing to raise issues related to the State losing shoes that were seized as evidence.” (ECF No. 11-2 at 50) (emphasis added). He alleged counsel was ineffective for failing to request a Willits hearing regarding the shoes. (Id.). The state habeas trial court noted his counsel “did request a Willits instruction and the Court granted the request” and, therefore, that this claim of ineffective assistance of counsel was “baseless.” (Id.). Martinez also alleged counsel was ineffective for failing to move to dismiss the case altogether and failing to suppress evidence regarding the shoes, “because the State destroyed them.” (Id.). In his state habeas petition Martinez suggested “the destruction of the [the shoes] prevented him from having them tested for DNA” and violated his constitutional rights, citing Arizona v. Youngblood, 488 U.S. 51 (1988). (Id.).
To be entitled to a jury instruction pursuant to the holding in State v. Willits, 96 Ariz. 184 (1964), a defendant must prove both that the state failed to preserve exculpatory, material, accessible evidence, and resulting prejudice. See Arizona v. Fulminante, 193 Ariz. 485, 503 (1999). If the defendant makes this showing, they are entitled to an instruction informing the jury it may draw an adverse inference from the state's action. Id.
In denying relief on this claim the state habeas trial court noted: “Under Youngblood, dismissal may be an appropriate remedy if potentially exculpatory evidence is destroyed by the State in bad faith.” (Id.). However, the trial court determined that Martinez's claims regarding the shoes failed because Martinez did not “provide any viable basis for a claim that the shoes were destroyed as a result of bad faith.” (Id.).
The state court concluded:
All indications in the record are to the contrary. The shoes were mistakenly destroyed by an evidence clerk at the police department when [Martinez's] original case was dismissed, and he was re-indicted under a new case number. He has, therefore, failed to show that his attorneys were
ineffective in failing to file a baseless motion to dismiss or to suppress based on the destruction of the shoes. He has also failed to show that he suffered any prejudice as a result of his attorneys not filing such a motion.(Id.). The Arizona Court of Appeals adopted the trial court's reasoning and conclusion.
A grand jury indictment returned July 23, 2012, charged Martinez with burglaries occurring in late 2011. (ECF No. 11-1 at 10-11). In his appellate brief, Martinez asserted: “Martinez was originally charged in three cases arising out of a rash of burglaries in Casa Grande in the fall of 2011. Eventually, on July 23, 2012, those cases were dismissed and he was re-indicted on nine charges for the original three plus two more burglary-type offenses that occurred in Casa Grande in the fall of 2011. (ECF No. 11-1 at 40). Martinez asserted:
The State tried to link these cases up through so-called ‘treadwear' evidence, but that effort was hampered by the fact that the Casa Grande Police Department destroyed Martinez's shoes in 2012, so at most Officer McCabe could say was that the treadwear prints in two of the cases were similar to those shoes.(ECF No. 11-1 at 41). In its responsive brief in the state habeas action, the State asserted the shoes “were destroyed because when evidence clerks were notified by the Court of the dismissal of the original three cases, they proceeded to destroy the evidence associated with those cases.” (ECF No. 11-1 at 207).
Citing to the trial transcripts, Martinez argued, with regard to Count 4 (the “Logue Residence”), a crime of which he does not stand convicted:
The scene at the Logue [Residence] was processed by an evidence technician who was allowed to resign before being terminated for dishonesty in a case. [] He photographed the shoe impressions in the front, back by the gate and on the door that was kicked in. [] The shoe impression on the door was a partial impression. [] He also took photos of the shoes in the residence to show that they were not the same treadwear as the one on the door, but didn't bother to take a photo of the treads.(ECF No. 11-1 at 42). With regard to the crime scene at the Neely Residence (Count 2), in addition to the treadwear evidence the victim of that crime saw a man leaving her home, testifying the man told her “I'm your burglar,” and the victim identified Martinez as the “burglar.” (ECF No. 11-1 at 44).
The state court's decision denying this claim was not clearly contrary to nor an unreasonable application of federal law. Under certain circumstances, the state's failure to collect or preserve evidence constitutes a due process violation. See Youngblood, 488 U.S. at 58; Villafuerte v. Stewart, 111 F.3d 616, 625-26 (9th Cir. 1997). However, the Due Process Clause does not impose on the police “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Youngblood, 488 U.S. at 58. The duty to preserve evidence is limited to material evidence, i.e., evidence whose exculpatory value was apparent before its destruction and that is of such nature that the defendant cannot obtain comparable evidence from other sources. See California v. Trombetta, 467 U.S. 479, 489 (1984); Richter v. Hickman, 521 F.3d 1222, 1234 (9th Cir. 2008), reversed on other grounds by Harrington v. Richter, 562 U.S. 86 (2011). Accordingly, the state's “destruction” of evidence is only a per se violation of due process when the destroyed evidence is material, exculpatory evidence. If the exculpatory value of the evidence was not apparent to the police, or if the defendant could obtain comparable evidence from other sources, the doctrine of Trombetta is not violated. Trombetta, 467 U.S. at 488 (“Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.”).
With regard to evidence which does not fall under the purview of Trombetta, i.e., evidence which is not clearly exculpatory, the “failure to preserve potentially useful evidence does not constitute a denial of due process of law” “unless a criminal defendant can show bad faith on the part of the police.” Youngblood, 488 U.S. at 57 (emphasis added). See also Grisby v. Blodgett, 130 F .3d 365, 371 (9th Cir. 1997). Potentially useful evidence is evidence that “could have been subjected to tests, the results of which might have exonerated the defendant.” Illinois v. Fisher, 540 U.S. 544, 546 (2004). See also Youngblood, 488 U.S. at 57. With regard to potentially useful evidence, a violation of due process only occurs if the purportedly exculpatory evidence was lost via an act of bad faith. Sanders v. Cullen, 873 F.3d 778, 811 (9th Cir. 2017). When the police act “in accord with their normal practice,” there is no showing of bad faith. Trombetta, 467 U.S. at 488. For example, the Ninth Circuit Court of Appeals has concluded a due process claim is defeated when a police department's actions were in “substantial compliance” with state statutes regarding disposition of personal property or evidence. See United States v. Lewis, 40 F.3d 1325, 1340 (1st Cir. 1994); Ashworth v. Myers, 45 F.3d 435, 1994 WL 718922, at *2 (Table) (9th Cir. 1994). Notably, negligence by the police department regarding the failure to preserve evidence does not establish bad faith. Grisby, 130 F.3d at 372, citing Villafuerte, 111 F.3d at 625; Wilson v. Sheldon, 874 F.3d 470, 479 (6th Cir. 2017); United States v. Bohl, 25 F.3d 904, 912 (10th Cir. 1994) (“Of course, mere negligence on the government's part in failing to preserve such evidence is inadequate for a showing of bad faith.”).
The state court found that the shoes were destroyed at a time when there was no active charge against Martinez and Martinez fails to present any clear and convincing evidence that, at that time, it was known that the shoes were even potentially exculpatory. Martinez fails to establish that the destroyed shoes were indeed exculpatory, rather than “potentially useful,” and accordingly to succeed on a due process claim he was required to establish bad faith with regard to the destruction of the evidence. Martinez has failed to establish bad faith on the part of the police. Accordingly, the state court's conclusion that Martinez's counsel was not ineffective for failing to assert a violation of Youngblood was not an unreasonable application of Strickland, because counsel's performance is not deficient and a defendant is not prejudiced when counsel fails to raise a claim that is without merit or fails to urge a motion which is futile or frivolous. Zapien v. Davis, 849 F.3d 787, 796 (9th Cir. 2015); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“It should be obvious that the failure of an attorney to raise a meritless claim is not prejudicial ....”).
In this matter, because the destruction of the shoes was not in bad faith, any motion pursuant to Youngblood would not have succeeded. Additionally, Martinez arguably fails to establish both deficient performance and prejudice as counsel did seek a Willits instruction, which was granted, indicating counsel appreciated the issue regarding destruction of the shoes and asserted the motion most likely to succeed in addressing the issue. Because counsel's performance in this regard was not deficient nor prejudicial, the state court's resolution of this claim was not clearly contrary to nor an unreasonable application of Strickland.
2. Martinez's claim regarding the hat
In his state habeas petition and in his federal habeas petition Martinez asserts counsel was ineffective for failing to “contest the results of the DNA testing of his hat by having it independently tested.” (ECF No. 11-2 at 52).
In his state habeas petition, Martinez asserted his trial counsel was ineffective for failing to consult with Martinez to develop a defense strategy and discuss discovery with Martinez. He alleged counsel
... did not independently contest DNA on hat by having it tested, he did not move to suppress “All” shoe print evidence after the police destroyed the “shoes” they [seized] as evidence. Those same shoes should have been tested for DNA, and the shoes were destroyed and therefore no link of shoe prints could be proven to be Martinez's. Green's decision to not undertake substantial pretrial investigation prejudiced Martinez throughout his trial.”(ECF No. 1-1 at 12).
The state habeas trial court denied relief on this claim, concluding:
The State used the DNA evidence on the hat to incriminate [Martinez]. [Martinez], however, provides no reason to believe that it would have made any difference if the DNA testing had been done. In fact, [Martinez]'s position in his Petition is that he should have pled guilty because the evidence against him (including the DNA evidence) was so strong. [] The fact that his counsel did not seek an independent DNA test on the hat does not amount to ineffective assistance of counsel. Furthermore, Martinez has, in any event, failed to show that he was prejudiced by the failure to conduct the test.(ECF No. 11-2 at 52).
In his appellate brief Martinez mentioned the hat and the DNA evidence as connected to Count 8, the “Zuniga Residence” crime. (ECF No. 11-1 at 46).
In certain circumstances defense counsel's failure to conduct an adequate investigation can constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 69-91. However, mere speculation about what evidence might have been produced by further investigation will not support a Strickland claim. See Ceja v. Stewart, 97 F.3d 1247, 1255 (9th Cir. 1996); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (finding the defendant was not denied effective assistance of counsel for counsel's failure to call a witnesses absent any indication of what those witnesses would have testified to or how their testimony would have changed the outcome of proceeding); Valencia v. Ryan, 2012 WL 1681991, at *12 (D. Ariz. Jan. 9, 2012). Martinez has not established that trial counsel could have obtained a DNA expert who would have testified favorably for the defense. Similarly, he has not established that independent DNA testing would have shown Martinez's DNA did not match that found in the hat, contradicting the State's evidence. Such speculative claims are insufficient to establish ineffective assistance of counsel. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (holding conclusory allegations lacking factual support do not provide a sufficient basis for habeas corpus relief); Bragg v. Galaza, 242 F.3d 1082, 1088-89 (9th Cir. 2001) (determining mere speculation that further investigation might lead to evidence helpful to petitioner was insufficient to demonstrate ineffective assistance of counsel); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (denying claim of ineffective assistance of counsel for failing to call defense witness where petitioner did not present affidavit from potential witness stating witness was able to offer testimony helpful to the defense). There simply is no basis for finding that an independent DNA test would have been more beneficial to Martinez's position; indeed, counsel's choice to not have the hat tested could have been strategic because, had counsel obtained an independent DNA test and the test revealed Martinez's DNA, such evidence would have been damaging to Martinez's case. See Edwards v. Miller, 2015 WL 10963718, at *17-18 (S.D. Cal. Apr. 1, 2015), report and recommendation adopted, 2016 WL 3092088 (S.D. Cal. June 2, 2016), aff'd 756 Fed.Appx. 680 (9th Cir. 2018). Consequently, the state court's conclusion that Martinez failed to establish a Strickland claim with regard to counsel's alleged failure to obtain an independent DNA test was neither contrary to, nor an unreasonable application of Strickland. See Grisby, 130 F.3d at 373 (“Speculation about what an expert could have said is not enough to establish prejudice []” under Strickland).
C. Ineffective Assistance of Counsel - Renewed Motion to Sever
Martinez contends his counsel was ineffective for failing to renew a motion to sever at trial. In his state habeas action Martinez asserted his counsel “should have renewed his Motion to Sever during the trial.” (ECF No. 11-2 at 50). The state court concluded: “Even if his attorney's failure to renew the Motion to Sever during the trial fell below objectively reasonable standards of representation, it did not result in any prejudice to [Martinez],” noting the Arizona Court of Appeals had considered the propriety of the trial court's denial of severance and vacated Martinez's conviction on Count 4. (ECF No. 11-2 at 50-51) (“Based on the Court of Appeals ruling, Martinez suffered no prejudice.”).
The state court's conclusion that Martinez failed to establish prejudice arising from his counsel's alleged error and, therefore, that he failed to establish both prongs of the Strickland test, was not clearly contrary to or an unreasonable application of Strickland because on appeal the Arizona Court of Appeals considered and granted relief with regard to Martinez's claim that he was entitled to severance.
D. Ineffective Assistance of Counsel - Police Technician's “Integrity Files”
In his federal habeas petition Martinez asserts his counsel was ineffective for failing to file a motion for discovery seeking the personnel files of a police crime scene technician. (ECF No. 1 at 5). He alleges his counsel's conduct was ineffective with regard to “Evidence/Disclosure” as follows:
Attached to the federal habeas petition is a notice of investigation, dated October 15, 2012, indicating that “numerous items of unmarked and unprocessed evidence from crimes scenes” were seen at Nolasco's work station on September 26, 2012, and a notice of resignation dated October 15, 2012. (ECF No. 1-6 at 13). This does not establish that Nolasco was accused of “tampering” with evidence. At Martinez's trial Nolasco testified on direct examination that he was investigated regarding his conduct in a case occurring in August of 2012, and that as a result of that investigation there was a “finding” for “dishonesty.” (ECF No. 11-1 at 136).
Appointed counsel was ineffective through the failure of filing a “MOTION for DISCOVERY” to obtain “Integrity files” of the officer who handled/ processed evidence in regard to charged offense as the officer in question [Nolasco] was forced into resignation due to evidence tampering and to further draw attention counsels [sic] failure to challenge DNA results due to internal corruption @ the Casa Grande Police Dept. ...”(ECF No. 1 at 5). In his memorandum in support of his petition Martinez asserts counsel was ineffective because they failed to file a motion to dismiss “due to a Casa Grande Police Dept. ID Tech [Nolasco] destroying petitioners [sic] exculpatory evidence (shoes) ...” (ECF No. 4 at 12).
There is nothing in the record to indicate Nolasco himself destroyed the shoes. See ECF No. 1-1 at 41 (indicating that the shoes were taken to Nolasco to be photographed and then placed in an evidence locker).
Martinez did not squarely present to the state courts a claim that counsel was ineffective for failing to “discover” Nolasco's “integrity file,” the claim raised in his federal habeas petition. In his state habeas petition, under the heading “Ineffective Assistance of Counsel,” Martinez alleged:
Martinez's counsel(s) fell way below the objective standard. Failure to explain the pleas versus exposure to trial, was grossly below objective standards and violated Martinez's 6th and 14th amendments. Atty Green's failure to subpoena witness Tim Jeter and Eli as stated in police report fell below objective standards. Attornies [sic] failure to consult with Martinez more than 20 minutes was highly inept. His failure to strategize a defense with Martinez's alibis was ineffective.
... Counsels [sic] overall performance including his decision not to put on any witnesses in support of a viable theory of defense falls outside the wide range of professionally competent assistance .
. Martinez's counsel (both Larson & Green) failed to investigate police report witness Tim Jeter. This witness should have been [subpoenaed] to testify for the defense. There is no evidence that directly links Martinez to this crime. .
Martinez has always felt his attorney's failed to properly represent him. They had no investigation, no interviewing of witnesses, no preparation or strategy of a defense, no visiting of crime scenes. No testing of hat or shoes for DNA. .
Discovery was not divulged by Mr. Green until the night before trial (1000 pg's via email) No explanation of video or DNA expressed. Has his, Martinez's att[orney] Mr. Green addressed the evidence of discovery properly, given an objective standard, no way would a decent attorney -presenting no witnesses, preparing a strategic defense, allowed Martinez to move forward with trial. .(ECF No. 1-1 at 19-21)
In his state habeas petition, under the heading “Evidence,” which preceded Martinez's arguments regarding counsel's performance, Martinez alleged:
... [Trial counsel] failed to cross examine/object to evidence not implicating Martinez on all counts. The state argued about shoe prints being involved in all the crimes. However, none of the shoe prints implicated Martinez. More so, evidence technician I.D. Tech Nolasco was given the choice to resign or be terminated for being dishonest and contaminating evidence in other cases. Therefore, Martinez argues all evidence gathered in the Neely Case and the Logue case and having possession of shoes that were
destroyed be suppressed and dismissed. The specific shoes from Martinez were destroyed making it possible to connect Martinez to them.
... Also the facts that I.D. Tech Nolasco was involved with the shoe evidence supports this argument [that counsel should have requested a Willett's hearing] even more so. The prosecutor relied on shoe evidence to joinder these cases and a Willett's Hearing Martinez feels would have exonerated that evidence and severance should have been granted.
... In this case violations were fundamental errors and Martinez was prejudiced by evidence gathered and handled by Police I.D. Tech Nolasco who was proven to be dishonest and was allowed to be terminated or resign, from the Casa Grande Police Department.(ECF No. 1-1 at 17-18). In his reply brief in his state post-conviction action, Martinez alleged Green, his trial counsel, “fell below objectively reasonable standards by not putting in a motion for Discovery prior to trial under Rule 15.6(b)(C).” (ECF No. 1-1 at 61).
Belying Martinez's allegation that trial counsel's performance was deficient and that he was prejudiced by counsel's errors regarding the treadwear evidence, in Martinez's brief appellate counsel noted, citing to the trial transcript, that counsel established at trial that the treadwear evidence implicated Martinez in only two of the crimes: “when Martinez was arrested he had on Converse shoes, similar to what the police believed was used in the Zuniga and Logue cases, but not in any of the other cases. [footnote 10: These statements about the shoes were verified at trial by Officer McCabe.]” (ECF No. 11-1 at 52). Accordingly, it appears that the evidence regarding the shoes was discredited by trial counsel, and as noted supra Martinez does not stand convicted of the “Logue Residence” crimes. The evidence connecting Martinez to the other crimes (including the Zuniga Residence) included his connection with a brown Chevy Malibu seen at the crime scenes, one instance of video camera footage from a crime scene, photo line-up identifications, the DNA evidence taken from a hat found at one of the crime scenes, and victim-eyewitness identification. (ECF No. 11-1 at 71-84, 88). Counsel did have a defense strategy, including a “misidentification defense.” Martinez's brother (who was then incarcerated and wore a prison uniform during his testimony) asserted he committed at least one of the crimes charged to Martinez, although much of the brother's testimony appears to have been discredited. (ECF No. 11-1 at 81-84, 93, 141-42). The competence of trial counsel in asserting a defense of misidentification and lack of evidence is also indicated by the fact that Counts 3 (trespass at the Logue Residence) and 9 (criminal damage of the Zuniga Residence) were dismissed at the close of the State's case.
The record indicates Nolasco testified at Martinez's trial. (ECF No. 11-1 at 76, 135-36). The trial transcript indicates Nolasco admitted during his direct testimony that he resigned from the police department after being informed that he could be terminated from that position due to an internal investigation as to his conduct in a different case, investigated in August of 2012, involving dishonesty. (ECF No. 11-1 at 135-36). All of the crimes alleged against Martinez occurred, and the crimes scenes investigated, in the fall of 2011.
Rule 15.6 describes the parties' continuing duty to disclose additional information as it is discovered. Subsection (b) of this rule provides: Any party who anticipates a need to provide additional disclosure no later than 30 days before trial must immediately notify both the court and all other parties of the circumstances and when the party will make the additional disclosure.” The final deadline for disclosure is seven days prior to trial. See Ariz. R.Crim. P. 15.6(c).
In construing these claims, the state habeas trial court did not mention a claim that counsel was ineffective for failing to file a motion for discovery regarding Nolasco's “integrity” files. The court determined Martinez had asserted his counsel “. failed to file a motion to suppress evidence gathered by [Nolasco] in the Neely and the Logue burglaries.” (ECF No. 11-2 at 51). As grounds for such a motion, the court noted Martinez had alleged “[Nolasco] had been found to have been dishonest and to have allegedly contaminated evidence in other cases.” (Id.). The state habeas trial court denied relief on this claim, concluding Martinez had not cited
.. [any] viable legal theory or applicable authority to support his claim that suppression and dismissal would be appropriate based on Nelasco's conduct in other cases. His attorneys did not provide ineffective assistance by failing to file what would have been a baseless motion. Furthermore, he suffered no prejudice from their failure to do so because he has not shown any basis for believing the motion would have been successful.(Id.).
In denying state habeas relief, the habeas trial court mentioned that in his state habeas petition Martinez had asserted his counsel “should have filed a Motion for Discovery.” (ECF No. 11-2 at 51). The state habeas trial court concluded, however, that Martinez did “not identify what discovery was missing, why it was needed or how the failure to request it resulted in any prejudice to him.” (ECF No. 11-2 at 51). Therefore, the state court concluded, Martinez had not “raised a colorable claim that his attorneys were ineffective for failing to file the motion.” (ECF No. 11-2 at 51).
The state trial court was not presented with a claim that counsel was ineffective for failing to file a motion for discovery seeking Nolasco's integrity file. Nowhere in his state habeas petition did Martinez squarely present such a claim.
Martinez did present this claim in his petition for review. In his petition for review of the trial court's denial of post-conviction relief Martinez alleged counsel was ineffective because he failed to seek the “integrity files” of Nolasco. (ECF No. 1-2 at 10-11). He alleged the “withheld ‘Integrity files' may have altered at least one jurors assessment of the case.” (ECF No. 1-2 at 12). However, this claim appears to mix an ineffective assistance of counsel claim with a due process claim: throughout this portion of his petition for review Martinez cites Brady v. Maryland, arguing “the governments [sic] duty under Brady arises regardless of whether defendant makes request for evidence.” (ECF No. 1-2 at 10-11). Martinez also mingles this claim with his claim regarding counsel's alleged failure to obtain independent DNA testing, asserting “in the matter of the seized ‘Hat' appointed counsel failed to request the COURT ... for an independent DNA ... test due to internal corruption within the Casa Grande Police Dept[artment],” which corruption he alleges is established by Nolasco's malfeasance in another case. (ECF No. 1-2 at 11).
Martinez did not “fairly present” to the state's “highest court” a claim that his counsel was ineffective for failing to obtain, through discovery, Nolasco's “integrity file,” because he did not present this claim to the state trial court prior to presenting the claim to the state appellate court. The claim was not “fairly presented” to the Arizona Court of Appeals because the appellate court will not consider a claim not squarely presented to the state trial court. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (stating that the petition for review must contain “[t]he issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review” (emphasis added)); State v. Rodriguez, 227 Ariz. 58, 61 n.4 (Ariz.Ct.App. 2010) (declining to address an argument presented in the lower court but not presented in the petition for review), both cited in State v. McAuley, 2017 WL 772410, at *1 n.1 (Ariz.Ct.App. 2017); Pinzon v. Ryan, 2015 WL 11071468, at *5 (D. Ariz. Sept. 25, 2015) (“The [state] appellate court found that Petitioner did not raise these issues in the petition for post-conviction relief that he filed in the trial court, and under Rule 32.9(c) he was precluded from presenting those issues on appeal.”); Hershfeldt v. Schriro, 2007 WL 951965, at *1 (D. Ariz. Mar. 28, 2007) (“Under state law a claim may not be raised for the first time in a petition for review from the denial of post-conviction relief . . .”). See also State v. Bortz, 169 Ariz. 575, 577 (Ariz.Ct.App. 1991); State v. Swoopes, 216 Ariz. 390, 403 (Ariz.Ct.App. 2007) (holding that there is no review for fundamental error in a post-conviction relief proceeding); State v. Lunsford, 2016 WL 4013606, at *1 (Ariz.Ct.App. July 26, 2016) (same); State v. Weiber, 2013 WL 268696, at *1 (Ariz.Ct.App. Jan. 24, 2013), citing State v. Ramirez, 126 Ariz. 464, 468 (Ariz.Ct.App. 1980) (holding a reviewing court will not consider on review issues not presented to the trial court).
The only claim regarding Nolasco's “integrity files” on which there is a reasoned decision from a state court is the claim that counsel failed to move to dismiss some or all of the counts of the indictment and/or move to suppress evidence based on Nolasco's purported tampering with evidence or other bad conduct in other cases. This claim regarding suppression or dismissal was not properly exhausted because this claim differs factually and legally from the related claim raised in the petition for review. The claim regarding the failure to discover the file was not “properly” exhausted or “fairly presented” to the state appellate court, because it was not squarely presented to the state trial court. Martinez has, therefore, failed to properly exhaust the claim and the claim is procedurally defaulted. Martinez fails to establish cause for, or prejudice arising from his procedural default of the claim, nor does he establish a fundamental miscarriage of justice will occur absent review of the merits of the claim.
However, in the alternative, to the extent this claim was considered and rejected by the state appellate court, or to the extent the Court wishes to deny relief on the merits of the claim, counsel's purported “failure” to seek discovery of the integrity file was not prejudicial and, therefore, Martinez fails to establish a claim for relief under Strickland. As noted supra, based on the limited trial transcript presented in this habeas action, the fact of Nolasco's forced resignation from the police department was known at the time of trial and brought to the jury's attention. Additionally, one of the counts of the indictment involving an investigation and the collection of evidence by Nolasco was dismissed at the close of the State's case, and Martinez's conviction on Count 4 was vacated by the appellate court and Martinez was not retried on that count of the indictment. The other burglary investigated by Nolasco, of which Martinez was convicted, involved evidence other than the treadwear evidence. Martinez does not provide any evidence to support his contention that Nolasco himself destroyed the Converse shoes Martinez was wearing when arrested which purportedly connected him to two of the crime scenes, nor does he provide anything beyond conjecture to support the contention that Nolasco “tampered” with evidence in his case. Martinez does not present anything other than conjecture to establish that Nolasco collected or processed the DNA evidence from the hat left at one of the crime scenes. Martinez does not present any evidence that, had counsel obtained Nolasco's “integrity file,” counsel's cross-examination of Nolasco to present additional evidence of malfeasance other than that produced on direct examination would have changed any juror's verdict with regard to any count of conviction. To establish prejudice arising from counsel's purported error, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Martinez fails to make this showing with regard to his claim regarding counsel's alleged failure to obtain Nolasco's integrity file.
F. Ineffective Assistance of Counsel - Testimony of Exculpatory Witness
Martinez contends his counsel was ineffective for failing to call Tim Jeter to testify. Martinez raised this claim in his petition for state habeas relief. (ECF No. 11-2 at 52). The state habeas trial court denied relief on this claim, concluding:
Per the police reports attached to the Petition, Mr. Jeter lived in the same neighborhood where the Kartchner burglary occurred. He mentioned to the police that he saw a subject in the neighborhood he knew as Eli. He made
clear he was not suggesting that this person should be considered as a suspect. There is no indication that his testimony would have provided appreciable help to the defense. Martinez does not provide any reason to believe that this witness would have made any difference to the result of the trial.....(Id.). Martinez also raised this claim in his petition for review, and the Arizona Court of Appeals denied relief based on the trial court's determination.
The state court's conclusion that counsel was not ineffective for failing to call Jeter to testify was not an unreasonable application of Strickland. The ultimate decision as to whether to call witnesses at trial is well within counsel's “full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's decision ... not to put certain witnesses on the stand....”). The power to decide questions of trial strategy and tactics rests with counsel, and the decision as to what witnesses to call is a tactical, strategic decision. See, e.g., Faretta v. California, 422 U.S. 806, 820-21 (1975). Tactical decisions of trial counsel deserve deference when counsel makes an informed decision based on strategic trial considerations and the decision appears reasonable under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). Additionally, “complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what the witness would have testified are largely speculative.” Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002).
A petitioner bears the burden of demonstrating counsel's choices regarding the presentation of his defense constituted deficient performance and were prejudicial. See Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009); Rego v. Sherman, 704 Fed.Appx. 634, 638 (9th Cir. 2017); Lazo v. Clark, 387 Fed.Appx. 754, 755 (9th Cir. 2010). A petitioner's speculation that counsel failed to adequately investigate a potential line of defense or failed to present particular testimony rarely creates a “reasonable probability” that a different result would have occurred absent the purportedly deficient representation. Strickland, 466 U.S. at 694. Counsel's choice of a sound defense strategy, and any decisions made regarding the implementation of that strategy, are “virtually unchallengeable.” Id. at 690. See also Ayala v. Chappell, 829 F.3d 1081, 1103 (9th Cir. 2016). It is well settled that “counsel's tactical decisions at trial . . . are given great deference and must similarly meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006).
To succeed on a Strickland claim based on counsel's failure to obtain testimony, a petitioner may not use self-serving speculation to argue that a witness might have provided favorable testimony, but instead must adduce evidence to show what the witness's testimony would have been. See Grisby, 130 F.3d at 373; United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.”). Any allegations of what Jeter might have said if called to testify are pure speculation, and Martinez has provided no affidavit or other evidence to show that Jeter's testimony would have been favorable to the defense. Therefore, in addition to Martinez's failure to show that counsel's performance was deficient, Martinez has not shown a reasonable probability that Jeter's testimony would have probably changed the verdict and, accordingly, he fails to establish the prejudice prong of the Strickland test.
F. Ineffective Assistance of Counsel - Competence
Martinez contends his counsel was ineffective for failing to make sufficient inquiry into Martinez's competency prior to trial, and failing to present mitigating factors through “an experienced mitigation specialist” at sentencing.
In his state habeas action, Martinez asserted his counsel was ineffective at sentencing, citing “... the mitigating evidence that existed, including that [Martinez] was abused as a child physically, sexually and mentally and that he had a learning disability that caused him to struggle academically. He further notes that he had substance abuse issues dating back to when he was 13.” (ECF No. 11-2 at 53). Martinez asserted his attorney was ineffective because he did not retain a mitigation specialist or present available mitigation evidence. (Id.).
In its responsive brief, the State noted:
... Undersigned counsel has not been able to find in any of the transcripts any exchange between the many judges and lawyers who handled this case and Martinez where he professes confusion or misunderstanding.
... [Martinez's counsel] gathered and submitted for mitigation many letters from friends and family of Martinez in support of him. Martinez's wife and in-laws spoke on his behalf. More importantly, Martinez addressed this Court at length. [] He was articulate, focused and managed to convey to this Court his nightmare of a bad life. In fact, this Court told Martinez, “It's hard for me to sit and listen to what you experienced or what you say you experienced as a child. What you've described is - I readily acknowledge is horrible. I'm sorry you went through that.” This Court did find as mitigating factors the dysfunctional childhood, substance abuse issues and claimed mental health issues that Martinez descried. This Court also told Martinez, “but what you have told me has had some moderating effect on the aggravation.” It is difficult to imagine that a mitigation specialist could have done any better than Martinez did himself.(ECF No. 11-1 at 208-09).
The state court denied relief on this claim, concluding:
At sentencing, Martinez's attorney presented multiple character letters, had witnesses speak on Defendant's behalf and made his own comments to the Court in a bad for leniency. Furthermore, Martinez himself spoke at great length regarding all of the same unfortunate circumstances in his life that he references in the Petition. The Court specifically noted that it considered these mitigating circumstances in deciding on what sentence to impose.(Id.). Accordingly, the habeas trial court concluded, Martinez failed to establish his counsel's performance was deficient or any resulting prejudice. (Id.).
The state habeas trial court, which was also the convicting court, did not unreasonably apply Strickland in denying this claim, because Martinez fails to establish any prejudice arising from counsel's alleged error. Counsel did argue mitigation and the sentencing court did consider the factors noted by Martinez in his habeas petition, and therefore Martinez is unable to establish he was prejudiced by his counsel's performance at sentencing. Martinez must do more than simply argue that the use of a mitigation specialist might have resulted in a different sentence. Accordingly, Martinez is not entitled to federal habeas relief on this claim.
G. Judicial Bias
Martinez contends trial judge's denial of his motion to sever and the imposition of an excessive sentence indicate the judge was biased, in violation of Martinez's due process rights.
In his state habeas petition Martinez asserted “Judicial Abuse,” asserting the judge's judicial assistant “was related to one of the victims in this case.” (ECF No. 1-1 at 23). He noted a different judge conducted a hearing to determine if there should be a change of judge. (Id.). Martinez asserted “it was biased to have Judge White try/sentence” him, and he “felt recusal of Judge White was necessary for a fair sentence.” (Id.). In his petition for review in his state habeas action Martinez asserted the trial and sentencing judge was biased because the judge's judicial assistant knew one of the victims. (ECF No. 1-2 at 1415). He alleged this bias “presented itself through predetermination and judicial ‘BIAS' by the improper application of law as stipulated herein.” (ECF No. 1-2 at 15). He alleged: “Recusal must be appropriate when a Judge is incapable of promoting independence, integrity, and impartiality of the judiciary system. In this matter Judge White failed to uphold and apply the law fairly and impartially in accordance with ‘Judicial Ethics.'” (Id.).
In denying review in Martinez's post-conviction action, the state appellate court found and concluded:
[Martinez asserts] the judge who presided over his trial was biased and should have recused himself. To the extent this argument is based on the denial of his motion for change of judge, we agree with the trial court that any such claim is precluded. See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3). However, to the extent Martinez is asserting a standalone claim of judicial bias because the same judge ruled on his Rule 32 proceeding, he has not indicated under which Rule 32.1 ground for relief his claim falls. And although Rule 32.10(a) allows a defendant to request a change of judge in post-conviction proceedings, it does not apply here, where the sentencing judge presides over those proceedings. See Ariz. R. Crim. P. 10.1, 32.10(a).Martinez, 2020 WL 2844494, at *2.
Although Martinez presented a claim of judicial bias to the state courts, the state court concluded that pursuant to Arizona procedural rules (Rules 32.1(a) and 32.2(a)(3) of the Arizona Rules of Criminal Procedure) a claim of judicial bias on the part of the trial and sentencing court must be raised on appeal and, therefore, the state court applied a procedural bar to considering the merits of the claim.
Because Arizona's procedural rules bar Martinez from returning to the state courts to attempt to properly exhaust the claim, the claim is procedurally barred. In response to the assertion that this claim is procedurally barred, Martinez asserts there is “NO factual legal basis to impede REVIEW of merits of petitioner's claims as previously demonstrated ‘Procedural Default' is NOT at issue in this matter as the assertion of procedural bar is an inadequate application of law due to ‘Fair Presentation' being established and the ‘EXHAUSTION' requirement being met.” (ECF No. 14 at 12-13).
Martinez fails to establish cause for, or prejudice arising from his procedural default of this claim. Nor does Martinez present any plausible claim or evidence of his factual innocence. Accordingly, the Court should not consider the merits of this claim and habeas relief may not be awarded on this claim.
IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the 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 ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Martinez seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.