Opinion
CV-22-01508-PHX-DWL (ASB)
09-06-2023
Nashid Fuad Ibn Mateen, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE ALISON S. BACHUS UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Petitioner Nashid Fuad Ibn Mateen (“Petitioner”), who is confined in the Arizona State Prison Complex - Tucson, has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. 1.) For the reasons that follow, the Court recommends that the Petition be denied and dismissed.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-22-01508-PHX-DWL (ASB).
I. State Proceedings
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness).
During a road-rage incident on a Phoenix freeway, Mateen shot at the victim's vehicle seven times. The uninjured victim proceeded to a gas station and called 9-1-1. During the ensuing police investigation, the victim and another driver who witnessed the shooting identified Mateen as the shooter. Mateen was arrested, and he admitted to shooting the victim's car multiple times, although he claimed he did so because the victim was “reaching for” something, perhaps a gun. Arizona Department of Public Safety Detective Trevor Graff testified before the grand jury that the victim's passenger window was up at the time of the shooting. The grand jury indicted Mateen on multiple felony offenses.
Upon finding Mateen was indigent, the superior court appointed counsel to represent him. Privately-retained counsel assisted appointed counsel in representing Mateen. Counsel emailed Mateen about the plea agreement:
Your case boils down to your word against the alleged victim's words as well [a]s what your girlfriend told police. You admitted to police that you fired at the vehicle. However, you did so in self-defense because you believe that the alleged victim reached for something. Therefore, identification is not an issue. It's whether a jury would believe that you reasonably acted in fear of your safety.
Mateen entered into a plea agreement and ultimately pled guilty to drive-by shooting, a class 2 dangerous felony. In doing so, he waived the right to a “probable cause determination” and “all motions, defenses, objections, or requests [that] he has made or raised, or could assert [after his guilty plea] to the court's entry of judgment against him[.]” The superior court imposed a minimum seven-year prison term. Mateen timely filed a notice of request for post-conviction relief (“PCR”).
The superior court appointed Mateen counsel in the PCR proceeding. After reviewing the case record and consulting with Mateen, counsel was unable to find any colorable claims for relief. Continuing without counsel, Mateen subsequently petitioned for PCR. He argued that prosecutorial misconduct in the form of suborning perjury during the grand jury proceedings deprived the
superior court of subject-matter jurisdiction. Mateen also raised a claim of ineffective assistance of plea counsel. The superior court denied the petition, finding that Mateen failed to establish grounds for relief. Particularly, the court found that it had subject-matter jurisdiction because testimony before the grand jury was “consistent with facts gathered during the investigation” and that Mateen waived his prosecutorial misconduct claim in his guilty plea. The court also found that his ineffective assistance of plea counsel claim failed because Mateen's counsel's email “did not misinform [him] regarding the burden of proof because it did not directly address the burden of proof in a justification case.”
(Doc. 11-5, Exh. JJ, at 2-3.)
B. Direct Appeal
On March 7, 2018, Petitioner filed a notice of appeal. (Doc. 11-1, Exh. M.) On March 19, 2018, the Arizona Court of Appeals dismissed Petitioner's appeal for lack of jurisdiction because “the judgment and sentence in [the] matter [was] entered pursuant to [a] plea agreement.” (Doc. 11-1, Exh. N.)
C. Post-Conviction Relief Proceedings
On April 2, 2018, Petitioner timely filed a pro se Notice of Post-Conviction Relief (“PCR”) under Rule 32 of the Arizona Rules of Criminal Procedure and requested counsel be appointed. (Doc. 11-1, Exh. O.) After counsel had been appointed, counsel for Petitioner informed the court that he had been “unable to find a colorable claim to raise” in the PCR petition. (Doc. 11-1. Exh. R.) On April 13, 2021, Petitioner filed an Amended Petition for Post-Conviction Relief (Doc. 11-3, Exh. Z) in which he raised four claims:
1. The State failed to obtain and maintain subject matter jurisdiction by not providing the Grand Jury with the applicable justification statutes and then by suborning perjurious testimony before the Grand Jury.
2. Petitioner did not intentionally, knowingly, and voluntarily enter into the October 5, 2017, Plea Agreement due to the ineffective assistance of his trial counsel. Specifically, Petitioner claims trial counsel erroneously advised him that he was required to prove self-defense, as if justification is an affirmative defense.
3. Trial counsel provided ineffective assistance of counsel based upon his failure to request photographs of the victim's car and obtain a ballistics expert.
4. The trial court should undertake a Fundamental Error Review and find that the errors committed in this case were so egregious that Petitioner could not have possibly received a fair trial.
(Doc. 11-4, Exh. DD.) On October 18, 2021, the PCR court denied Petitioner's PCR petition in its entirety, stating Petitioner “fail[ed] to establish any ground for relief under Rule 32.1, Arizona Rules of Criminal Procedure. Thus, [the] court has no basis to grant the relief requested by Petitioner.” (Id. at 8.)
On November 22, 2021, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 11-4, Exh. EE.) On December 8, 2022, that court granted review but denied relief, finding Petitioner failed to establish an abuse of discretion. (Doc. 11-5, Exh. JJ.) Petitioner did not file a motion for reconsideration and did not seek review by the Arizona Supreme Court. (Doc. 11-5, Exh. KK.) The Mandate issued January 19, 2023. (Id.)
II. Federal Proceedings
A. Petitioner's Habeas Petition
On September 6, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In his Petition, Petitioner asserted:
GROUND ONE: Petitioner was “deprived of due process of law and equal protection of law within the state's presentation to the [December 21, 2016] grand jury for [its] determination of probable cause.”
GROUND TWO: Trial counsel was ineffective “by failing to challenge the violations of due process of law and equal protection of law” that occurred during the grand jury hearing.
GROUND THREE: Trial counsel was ineffective “by failing to advise of a substantive and procedural right within the only defense, if Petitioner chose to go to trial, rendering the plea involuntary and unintentionally entered.”
GROUND FOUR: Trial counsel was ineffective “by not providing the crime scene photos to Petitioner prior to the entry
of the plea, rendering the plea involuntarily and unintentionally entered.”
(Doc. 1.)
In response, Respondents argued: (1) Grounds One, Two, and Four are procedurally defaulted, and (2) Ground Three fails on the merits. (Doc. 11.) Petitioner filed a Reply maintaining the contrary and asked the Court to order the State to furnish: (1) the September 29, 2017 Settlement Conference transcripts; (2) the PCR proceeding pleadings; and (3) the petition for review appendix. (Doc. 16.)
DISCUSSION
I. Applicable Law
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Standard of Review
1. Exhaustion
To seek federal habeas review, a state prisoner must also exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them “in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995); and O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Date v. Schriro, 619 F.Supp.2d 736, 762 (D. Ariz. 2008) (quoting O'Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires the Court to engage in a two-prong analysis. First, the Court must consider whether the petitioner invoked “one complete round” of the state's established review process for any claim raised on federal habeas review. See O'Sullivan, 526 U.S. at 845. The Court then must determine whether the petitioner pled the federal nature of the claim with “considerable specificity” before the state courts. See Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005); see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding “[a] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.”) (internal citations omitted).
a. Proper Forum
“To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by ‘fairly presenting' them to the state's ‘highest' court in a procedurally appropriate manner.” Date, 619 F.Supp.2d at 762 (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989); and Baldwin, 541 U.S. at 29). In non-capital cases arising in Arizona, the “highest court” requirement is satisfied by fair presentation to the Arizona Court of Appeals. Date, 619 F.Supp.2d at 762 (discussing Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); and Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). The Ninth Circuit in Swoopes held “Arizona has declared that its ‘complete round' [of appellate review] does not include discretionary review before the Arizona Supreme Court.” 196 F.3d at 1010 (clarifying the holding in O'Sullivan requiring a petitioner to invoke “one complete round” of a state's established appellate review process). Thus, claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes, 196 F.3d at 1010.
b. Specificity of Federal Basis
In addition to presenting his claims to the proper court, a state prisoner must fairly present his claims to the state court by describing both the operative facts and the federal legal theory on which his claims are based. See Date, 619 F.Supp.2d at 764; Baldwin v. Reese, 541 U.S. 27, 33 (2004); Duncan, 513 U.S. at 365-66 (holding petitioners must fairly present federal claims to state courts in order to give the State the “opportunity to pass upon and correct” alleged violations of federal rights, which requires petitioners to alert the state courts that they are asserting claims under the federal Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
A claim is not fairly presented to the state court if that court “must read beyond a petition or a brief. .that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Full and fair presentation requires a petitioner to “present the substance of his claim to the state courts, including reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); see also Picard, 404 U.S. at 278 (holding fair presentation of a claim in state courts requires petitioners to present the state courts with the “substantial equivalent” of the claim raised in federal court).
In the Ninth Circuit, petitioners “must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law. While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makes that explicit reference even if the petitioner relies predominantly on state law before the state courts.” Insyxiengmay, 403 F.3d at 668.
2. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas petitioner's claims may be precluded from federal review in either of two ways.” Date, 619 F.Supp.2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was actually raised in state court but found by that court to be defaulted on state procedural grounds,” or (2) “a state prisoner failed to present his federal claims to the state court, but returning to state court would be ‘futile' because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims.” Id. (internal citations omitted). “Technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy. Id. at 766. Federal courts are barred from reviewing claims that were decided on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. at 729.
If a petitioner failed to exhaust his claim and is now procedurally barred from returning to state court to present it, then his claim is procedurally defaulted and barred from federal habeas corpus review. See Coleman, 501 U.S. at 735 n.1. A petitioner can overcome procedural default, and thus bar of his claim, only by showing cause for the default and resulting prejudice or that a fundamental miscarriage of justice will result from the denial. Id. at 750. To establish cause, the petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). If a petitioner succeeds in showing cause, he can meet the prejudice prong if he demonstrates “that the errors.worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” Id. (internal quotations and citations omitted). Alternatively, to show a “fundamental miscarriage of justice,” a petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations and citations omitted). Under this standard, “actual innocence” means “factual innocence, not mere legal insufficiency.” Id. // // //
II. Analysis
A. Ground One
1. Petitioner's Claim
In Ground One, Petitioner contends he was deprived of due process and equal protection of law by the State's presentation to the grand jury for determination of probable cause. (Doc. 1 at 5.) He argues: (1) the grand jury transcripts demonstrate that the State suborned perjurious testimony; (2) the State failed to properly advise the grand jury of the applicable justification statutes to the same degree as the substantive statutes; and (3) the State presented abolished concepts of law to the grand jury for its determination of probable cause. (Id.) Petitioner contends the “failure to properly advise of statutes is fundamentally unfair prosecutorial conduct” and the “use of abrogated law does not acquire subject matter jurisdiction.” (Id.)
Petitioner raised this claim on PCR (Doc. 11-3, Exh. Z) and again in his petition for review (Doc. 11-4, Exh. EE). In response, the PCR court ruled:
An indictment alleging Petitioner committed four felonies was filed in this case on December 21, 2016, establishing the court's subject matter jurisdiction over the case. Petitioner did not cite any grounds to cause the trial court to lose jurisdiction.
Petitioner claims that the State erred by not providing the grand jury with applicable justification statutes and then suborning perjuriously testimony before the grand jury. Prior to entering the plea agreement with the State, the Petitioner did not file a Motion to Remand to the Grand Jury. The [c]ourt presumes that defense counsel made a strategy decision not to file a motion to remand based on his view of the evidence and applicable law.
Additionally, Petitioner's claim that the State did not provide the grand jury with justification statutes is refuted by the grand jury transcripts, which demonstrate that after the detective had testified to the grand jury, the State informed the grand jurors that, “based upon the evidence presented to the Grand Jury, additional statutes that may aid you in your deliberations can be found in chapter 4 of Title 13.” Chapter 4 of Title 13 relates entirely to justification. Therefore the jurors were instructed on the justification statutes to the same extent they were advised of the applicable substantive statutes
which related to the case.
Also, Petitioner's claim that the detective presented perjured testimony is not supported, as the detective's testimony was consistent with the victim's statements. While this testimony may have been contrary to [] Petitioner's version of events, it is clear the detective's statements were consistent with facts gathered during the investigation.
(Doc. 11-4, Exh. DD, at 5) (internal citation omitted). Based on the foregoing, the PCR court held “the Superior Court did have subject matter jurisdiction in [the] matter.” (Id.) Addressing the claim on review, the Arizona Court of Appeals found, “[t]o the extent [Petitioner] contends that perjured grand jury testimony violated his due process rights, he waived that challenge to the indictment by pleading guilty.” (Doc. 11-5, Exh. JJ, at 4.) That court further stated, “waiver aside, the record does not support [Petitioner's] prosecutorial misconduct and perjury claim.” (Id.) In concluding its denial of relief, the appeals court held Petitioner “impermissibly attempts to raise claims that he intentionally, knowingly, and voluntarily waived when he signed the plea agreement. [Petitioner] has not established an abuse of discretion.” (Id.)
2. Application of Law
Petitioner's Ground One is procedurally defaulted in the instant federal habeas proceeding. As evidenced, supra, the Arizona Court of Appeals found Petitioner waived his right to challenge “all non-jurisdictional defects unrelated to the validity of the plea, including constitutional challenges.” (Doc. 11-5, Exh. JJ, at 4.) Although the court of appeals went on to address the merits of the claim, the claim is still procedurally defaulted here. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (holding “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”) (emphasis in original); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”).
The state courts denied relief on independent and adequate state law grounds when finding Petitioner waived his right to challenge the grand jury proceedings by entering into the plea agreement. This Court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729. The court of appeals' decision is independent of the federal question and adequate to support the judgment. Therefore, the procedural default doctrine applies to this claim.
Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will result from the denial. Coleman, 501 U.S. at 750. Petitioner does not address Ground One's procedural default in his Reply and thus fails to establish cause and prejudice. Nor has he demonstrated that a fundamental miscarriage ofjustice will occur absent consideration of the merits.
Accordingly, Petitioner's Ground One is procedurally defaulted and not reviewable by this Court.
B. Ground Two
1. Petitioner's Claim
In Ground Two, Petitioner contends his trial counsel was ineffective by failing to challenge the violations of “due process of law” and “equal protection of law” that occurred during the grand jury proceedings. (Doc. 1 at 7.) Petitioner argues trial counsel did not move for a copy of the grand jury transcripts, which demonstrates that the prosecutor elicited testimony “that he knew to be false, based on the facts and evidence known at the time,” “failed to specifically instruct of all applicable statutes,” and “presented abolished concept[s] of law to the grand jury for its determination of probable cause.” (Id.) He further maintains that trial counsel failed to review readily available court documents that led to Petitioner losing substantive and procedural rights to challenge the grand jury proceedings. (Id.)
On PCR, Petitioner argued his trial counsel failed to review and disclose the grand jury transcripts, which “left trial counsel and Petitioner unaware of the malicious prosecutorial misconduct, fatal fundamental error, and the subject matter jurisdiction defect.” (Doc. 11-3, Exh. Z, at 33.) In the instant Petition, Petitioner admits “due to Petitioner's lack of legal experience[.] he unintentionally omitted this ground from his petition for review.” (Doc. 1 at 7.) Petitioner contends once he realized the claim was omitted, he “immediately motioned the [Arizona] Court of Appeals to permit supplement or amendment of his Petition for Review.” (Id.) The appeals court denied Petitioner's motion to amend, stating Petitioner “failed to show good cause to supplement or amend the petition for review with a new issue at this stage of the review proceeding.” (Doc. 115, Exh. II.)
2. Application of Law
Petitioner's Ground Two is procedurally defaulted in the instant proceeding. Respondents argue Petitioner's Ground Two is technically exhausted, but is procedurally defaulted from federal habeas review. (Doc. 11 at 20-21.) In reply, Petitioner contends Ground Two is not procedurally defaulted and argues this claim was raised in the appendix of his petition for review and is directly referenced in his “Motion to Supplement/Amend Petition for Review.” (Doc. 16 at 9.) The appeals court denied his motion to amend, thereby never addressing the omitted ineffective assistance of counsel claim. (Doc. 11-5, Exh. II.) Petitioner specifically argues, “[Petitioner] substantially made the basic showing the state rule proscribes by motioning to supplement or amend the petition with a direct reference to the claim before the appellate court rendered its decision.” (Doc. 16 at 10.) He further argues, “there is no statute, rule, or case law within Arizona that declares claims are waived if they are only presented in an appendix” and cites to Scott, 567 F.3d at 582-83, n.8. (Doc. 16 at 10.)
In Scott, the Ninth Circuit found that when claims were contained in the appendix of a petition for review to the Arizona Supreme Court, the petitioner's claim was exhausted. 567 F.3d 573. The petitioner had given the state supreme court a copy of the amended petition he sought to file, which included the operative facts and law. Id. at 583. The Ninth Circuit reasoned, “the Arizona Supreme Court knew exactly which claims [petitioner] sought to present” and “[a]ll exhaustion requires is that the state courts have the opportunity to remedy an error, not that they actually took advantage of the opportunity.” Id.
In Petitioner's “Motion to Supplement/Amend Petition for Review,” he stated:
In haste and lack of legal knowledge, Petitioner accidently omitted the “Ineffective Assistance of Counsel - Failure to Review and Disclose Grand Jury Transcripts” claim within the 11/22/21 Petition for Review to this court. This ineffective assistance of counsel claim has been presented to the Superior Court; 4/13/21 Petition for Post-Conviction Relief, page 30, to which the claim was denied. 10/18/21 Order, page 5.
(Doc. 11-5, Exh. HH.) The record demonstrates that the Arizona Court of Appeals rested upon an independent and adequate state procedural ground when denying Petitioner's motion to amend. That court stated, “Petitioner has failed to show good cause to supplement or amend the petition for review with a new issue at this stage of the review proceeding.” (Doc. 11-5, Exh. II.) Under Arizona law, a Petitioner may file a petition for review “no later than 30 days after the entry of the trial court's final decision” on a petition for post-conviction relief. A.R.S. § 33.16(a)(1). The record shows Petitioner filed his motion to amend eight months after filing his petition for review in the appeals court. (Doc. 11-5, Exh. II.) Thus, the motion was denied on independent and adequate state procedural grounds when the appeals court found Petitioner failed to show good cause to amend and denied the motion.
Even assuming Petitioner's Ground Two claim was exhausted, as the proposed amended claim was stated on his motion to amend before the appeals court, the claim is still procedurally defaulted here. “The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases the state judgment rests on independent and adequate state procedural grounds.” Coleman, 501 U.S. at 729-30; see also Harris, 489 U.S. at 261 (holding the independent and adequate state ground doctrine “has been applied routinely to state decisions forfeiting federal claims for violation of state procedural rules.”) (internal quotations and citations omitted).
Because the Ground Two claim has been barred by Arizona's procedural rules, any attempt to properly exhaust this federal habeas claim by returning to state court would be futile. Petitioner has procedurally defaulted this claim. See Date, 619 F.Supp.2d at 76566; see also Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (stating under Arizona's preclusion rule, petitioners generally are barred from raising any claim that was: (1) finally adjudicated on the merits in an appeal or in any previous PCR proceeding, or (2) waived at trial, on appeal, or in any previous collateral proceeding) (citing Ariz. R. Crim. P. 32.2(a)(2), (3)). Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will result from the denial. See Coleman, 501 U.S. at 750.
Here, Petitioner is unable to establish cause and prejudice. First, Petitioner has not shown an objective factor outside of his control that prevented him from properly raising this claim in the state courts and his pro se status and lack of legal training is not enough. See Cooper, 641 F.3d at 327; Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 908 (9th Cir. 1986) (holding that the cause and prejudice standard applies to pro se litigants and petitioner's illiteracy did not amount to cause to excuse the procedural default). Petitioner argues he unintentionally omitted this claim from his petition for review due to his “lack of legal experience,” but as established, this is insufficient to show cause. For purposes of analysis and assuming Petitioner could show cause, he is unable to show resulting prejudice. Petitioner has not demonstrated that counsel's failure to review and disclose the grand jury transcripts actually and substantially disadvantaged Petitioner or would have changed his decision to enter into the plea agreement. The record shows the State informed the grand jurors of the justification statutes (Doc. 1-1 at 18-19), and the detective's testimony was consistent with the victim's statements (Doc. 1-1 at 16; Doc. 1-2 at 14).
Further, the record does not show that the State presented abolished concepts of law to the grand jury. While the argument is not discussed in his habeas Petition, Petitioner argued in his petition for review that the State misrepresented his duty to retreat before using deadly force when asking the detective “did [Petitioner] acknowledge that he could have simply slowed down, gotten into a different lane of traffic and avoided the confrontation all together?” (Doc. 1-1 at 15). Petitioner argued this statement “effectively reversed the burden of proof upon Petitioner to retreat, as if the affirmative concept of self defense still existed and was not abolished with the enactment of Senate Bill 1145 (2006).” (Doc. 11-4, Exh. EE, at 96-97.) However, this argument is meritless and does not establish that the State presented abolished concepts of law. The record shows the State asked the detective about a statement Petitioner made to the detective previously. The State was not presenting “an abolished concept of law,” as that question was not a statement of law but rather a question regarding statements Petitioner made to the detective. As noted, supra, the State directed the grand jurors to chapter 4 of Title 13 to aid in their deliberations, which relates entirely to justification statutes. As such, Petitioner is unable to show cause or any resulting prejudice.
Furthermore, Petitioner has not argued “actual innocence,” but instead accepted a plea deal and pleaded guilty to one count of drive by shooting. (Doc. 11-1, Exh. F.) Thus, Petitioner has not made the necessary showings to overcome the procedural bar and Ground Two is not reviewable by this Court. The Court will recommend Petitioner's request to further supplement the record be denied, as the record is sufficiently developed for this Court's review.
C. Ground Three
1. Petitioner's Claim
In Ground Three, Petitioner asserts his “trial counsel was ineffective by failing to advise of a substantive and procedural right within the only defense, if Petitioner chose to go to trial, rendering the plea involuntary and unintentionally entered.” (Doc. 1 at 8.) Petitioner argues, in an email from his trial counsel on March 8, 2017, counsel failed to advise Petitioner that the State bore the burden of proving beyond a reasonable doubt that Petitioner did not act with justification when asserting a self-defense justification. (Id.)
Petitioner raised this claim on PCR (Doc. 11-3, Exh. Z) and again on petition for review before the Arizona Court of Appeals (Doc. 11-4, Exh. EE). The PCR court found, “[Trial counsel's] statement was an accurate description of the state of the law and [did] not constitute deficient performance.” (Doc. 11-4, Exh. DD, at 7.) On review, the appeals court affirmed that ruling. (Doc. 11-5, Exh. JJ, at 5.)
Petitioner's Ground Three has been properly exhausted in the state courts and as such, the Court will address the claim on the merits.
2. Applicable Law (Ineffective Assistance of Counsel)
Ineffective assistance of counsel claims are generally analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a habeas petitioner must show: (1) his counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) that the deficient performance prejudiced the petitioner's defense. Strickland, 466 U.S. at 687-88. “The [petitioner] bears the burden of overcoming the strong presumption that counsel performed adequately..,[a]s with deficiency, Strickland places the burden of proving prejudice on the [petitioner], not the government.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010).
With regard to the prejudice prong of the Strickland test, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As defined by the Supreme Court, a reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). This is a heavy burden for a petitioner to overcome. See Strickland, 466 U.S. at 689 (holding “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'”).
The Strickland test also “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the context of guilty pleas, the prejudice requirement “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59. “In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
In federal habeas corpus review, the federal court “must apply a ‘doubly deferential' judicial review to a state court's application of the Strickland standard under AEDPA.” Cheney, 614 F.3d at 995. It is Petitioner's burden to show “the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam). This Court has discretion to review the two prongs of the Strickland test in any order and need not address both prongs if Petitioner makes an insufficient showing in one. See Strickland, 466 U.S. at 697.
The Court applies the AEDPA's standard of review to the last reasoned state-court decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021). Accordingly, this Court reviews the court of appeals' decision as the last reasoned state court decision to address Petitioner's ineffective assistance of counsel claim.
3. Application of Law
The decisions of the Arizona state courts were not objectively unreasonable. Applying the Strickland analysis, the appeals court stated: “The superior court properly rejected [Petitioner's] [ineffective assistance of counsel] claim Plea counsel's email correctly advised [Petitioner] that he bore the burden ofproving that he shot the victim's car reasonably out of fear for his safety. Moreover, [Petitioner] proffered no evidence showing that he would have not pled guilty had counsel informed him that the burden of disproving a justification claim lays with the State.” (Doc. 11-5, Exh. JJ, at 5.)
The record shows Petitioner's plea counsel sent him an email that stated in part:
Your case boils down to your word against the alleged victim's words as well as what your girlfriend told the police. You admitted to police that you fired at the vehicle. However, you did so in self-defense because you believe that the alleged victim reached for something. Therefore, identification is not an issue. It's whether a jury would believe that you reasonably acted in fear of your safety.
(Doc. 1-3 at 11.) The PCR court also addressed this argument and stated, “[t]he statement did not misinform [] Petitioner regarding the burden of proof because it did not directly address the burden of proof in a justification case.. .Petitioner has not demonstrated a reasonable probability that absent the contents of the [] email that Petitioner would have insisted on going to trial.. .Petitioner has failed to establish that he was prejudiced by [trial counsel's] alleged failure to advise him of the applicable burden of proof.” (Doc. 11-4, Exh. DD, at 7.) The Court concurs with that conclusion.
Petitioner contends his plea counsel provided ineffective assistance by failing to adequately inform him of the burden of proof when asserting a self-defense justification. (Doc. 1 at 8.) Petitioner points to the email that he received from counsel, supra, and argues it failed to advise him that the State bore the burden of proving that Petitioner did not act with justification. (Id.) He argues without this knowledge, he involuntarily and unintentionally entered into the plea agreement. (Id.)
Under Arizona law, “a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.” A.R.S. § 13-404(A). The burden of proof for a justification defense initially lies with the defendant. A.R.S. § 13-205(A). If evidence of a justification defense is presented by the defendant, then “the state must prove beyond a reasonable doubt that the defendant did not act with justification.” Id. Petitioner would have initially been required to present evidence that he acted in self-defense. If he had made such a showing, the burden would have shifted to the State to prove beyond a reasonable doubt that Petitioner did not act with justification. Thus, plea counsel's email informing Petitioner that the issue would ultimately come down to whether a jury believed Petitioner acted in self-defense was not a misstatement of the law. Petitioner is therefore unable to show counsel's purported deficient performance.
Moreover, even if plea counsel's performance was deficient, Petitioner has failed to show that, but for counsel's failure to explicitly inform him of the burden of proof, he would have insisted on going to trial. Hill, 474 U.S. at 59. Petitioner argues he declared his desire to go to trial when he requested sentencing counsel to withdraw the plea prior to sentencing and “even attempted to file the motion himself' (Doc. 16 at 14), but the Court is unable to locate any such evidence in the record. Over the course of Petitioner's criminal proceedings, he had three different attorneys. The email that Petitioner points to in support of his assertion that counsel misstated the law, occurred seven months before Petitioner's change of plea hearing. (Doc. 1-3 at 11; Doc. 11-1, Exh. F, at 27.) The record shows between the time the email was exchanged and the plea proceedings occurred, more evidence was disclosed by the State, Petitioner engaged in a settlement conference, and the State changed the plea agreement offer. (Doc. 11-4, Exh. AA, at 28.) Thus, Petitioner is unable to show that he would have insisted on going to trial if counsel would have explicitly addressed the burden of proof, and therefore fails to demonstrate any resulting prejudice.
Accordingly, Petitioner has failed to show that the state courts' rejection of Ground Three is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. The Court recommends that the claim be denied.
D. Ground Four
1. Petitioner's Claim
In Ground Four, Petitioner contends his trial counsel was ineffective by not providing the crime scene photos to Petitioner prior to the entry of the plea, rendering the plea involuntarily and unintentionally entered. (Doc. 1 at 10.) Petitioner argues that the State “established that it disclosed crime scene photos to trial counsel” and that “trial counsel adamantly denied ever possessing the photos.” (Id.) Petitioner maintains counsel led him to make an “involuntary and unintelligent decision to enter into the plea” because the crime scene photos “did not establish the State's theory of its prosecution.” (Id. At 28.)
Petitioner failed to raise this exact claim on PCR, but after presenting it to the Arizona Court of Appeals on review, that court stated “[Petitioner] asserts that plea counsel provided deficient representation by failing to provide him with photographs of the crime scene. This argument is different than the one raised in superior court, and we therefore decline to address it.” (Doc. 11-5, Exh. JJ, at 5) (emphasis in original). On PCR, Petitioner raised a similar claim, asserting he received ineffective assistance due to counsel's “failure to motion for crime scene photos and obtain a ballistic report.” (Doc. 11-3, Exh. Z.)
2. Application of Law
Petitioner's Ground Four is procedurally defaulted in the instant proceeding. A similar analysis as discussed in Ground One, supra, applies here. The Arizona Court of Appeals declined to address this claim pursuant to Arizona state law. (Doc. 11-5, Exh. JJ, at 5.) Thus, the state court denied relief on independent and adequate state law grounds. See State v. Vera, 235 Ariz. 571, 573 (Ariz. App. 2014) (holding the Arizona Court of Appeals “ordinarily do[es] not consider issues on review that have not been considered and decided by the trial court.”). This Court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729. That decision is independent of the federal question and adequate to support the judgment. Thus, the claim is technically exhausted, but procedurally defaulted from federal review. See Date, 619 F.Supp.2d at 766 (clarifying “technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy).
Because any attempt to properly exhaust this federal habeas claim by returning to state court would be futile, as the claims are barred by Arizona's procedural rules, Petitioner has procedurally defaulted this claim. See Date, 619 F.Supp.2d at 765-66; see also Moreno, 116 F.3d at 410 (citing Ariz. R. Crim. P. 32.2(a)(2), (3)).
Petitioner argues the appeals court unreasonably declined to address his claim because it believed that Petitioner presented a different claim to the PCR court. (Doc. 16 at 9.) However, this argument fails to establish cause to excuse the default. See Murray, 477 U.S. at 488; Cooper, 641 F.3d at 327. Moreover, Petitioner has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits. See Bousley, 523 U.S. at 623; Coleman, 501 U.S. at 757. Thus, Petitioner's Ground Four is procedurally defaulted and not reviewable by this Court.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in his habeas Petition. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that Petitioner's request to order the State to provide additional documentation (Doc. 16 at 1) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.