Opinion
CV-20-08179-PCT-DLR (JZB)
04-15-2021
Michael Owen McKenzie, Petitioner, v. David Shinn, Respondent.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE.
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
Petitioner Michael Own McKenzie has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
The Court notes that Petitioner McKenzie has not personally signed his §2254 Petition. The Petition must be signed by Petitioner under penalty of perjury. See 28 U.S.C. § 2242; Rule 2(c)(5) of the Rules Governing Section 2254 Cases; LRCiv 3.5(a); Fed.R.Civ.P. 11(a). An unsigned pleading must be stricken unless omission of the signature is corrected promptly after being called to the attention of the party. Fed.R.Civ.P. 11(a). Because the Petition has not been signed, the Court will issue a separate order permitting Petitioner 30 days to submit a completed and signed certificate, which will be attached to that separate order.
I. Summary of Conclusion.
Petitioner raises three grounds for relief in his Petition. The Court finds that Petitioner's claims in Ground One fail on the merits, and Petitioner's claims in Grounds Two and Three are unexhausted and procedurally defaulted without excuse. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice. 1
II. Background.
A. Procedural Background.
The Court of Appeals summarized the following facts and trial proceedings:
McKenzie's mobile home caught on fire in November 2011, and again in February 2012. After each incident, McKenzie sought and received insurance proceeds to pay for the resulting damages. Following an investigation, the State charged McKenzie with one count of fraudulent schemes and artifices, two counts of arson of an occupied structure, and two counts of theft, alleging he, on two separate occasions, knowingly or intentionally set his home on fire and filed false insurance claims to receive insurance proceeds.
The jury found McKenzie guilty as charged, and the court imposed aggravated concurrent prison terms, the longest of which is ten years.State v. McKenzie, No. 1 CA-CR 15-0341, 2016 WL 1211755, at *1 (Ariz.Ct.App. Mar. 29, 2016). (See also Doc. 7-1, Ex. A, at 3.) On May 5, 2015, Petitioner received the following sentence on each of the following Counts, each to be served concurrently:
• Count I: Fraudulent Schemes and Artifices - 10 years
• Count II: Arson of an Occupied Structure - 10 years
• Count III: Arson of an Occupied Structure - 10 years
• Count IV: Theft - 10 years
• Count V: Theft - Three years(Doc. 7-1, Ex. C, at 11-14).
B. Direct Appeal.
On May 5, 2015, Petitioner, through counsel, filed a Notice of Appeal (Doc. 7-1, Ex. D.) On appeal, Petitioner raised two issues: (1) did the State present sufficient evidence to sustain his convictions; and (2) did the trial court abuse its discretion when it precluded defendant from impeaching a witness with certain statements? (Doc. 7-1, Ex. E, at 2.) On March 29, 2016, the Court of Appeals rejected Petitioner's arguments, and affirmed Petitioner's convictions and sentences. McKenzie, 2016 WL 1211755, at *1-3. (See also Doc. 7-1, Ex. A, at 3-5.) Petitioner filed a Petition for Review in the Arizona Supreme 2 Court (doc. 7-1, Ex. H), which was denied on October 25, 2016 (doc. 7-1, Ex. I).
C. Post-Conviction Review Proceedings.
On November 16, 2016, Petitioner filed a “Notice of Post-Conviction Relief” (PCR) in the Mohave County Superior Court. (Doc. 7-1, Ex. J.) In his petition, filed June 22, 2018, Petitioner alleged three counts of ineffective assistance of trial counsel, including: (1) failure of counsel to inform and advise Petitioner of the nature and consequences of the plea agreement; (2) failure of counsel to provide the mental health evaluator the relevant medical history records; and (3) failure of counsel to disclose and review testimony which the State intended to present at trial. (Doc. 7-2, Ex. M, at 5-24.)
On October 26, 2018, the trial court held an evidentiary hearing concerning the PCR petition. (Doc. 7-4, Ex. N, at 3-115 (Transcript of Oct. 26, 2018 Evidentiary Hearing).) At the hearing, the trial court noted that Petitioner had received a Donald hearing, explaining to him the potential plea offer and his exposure should he go to trial. (Id. at 111-112.) The trial court emphasized that “Mr. McKenzie was making it clear that he wanted to go to trial, and I think he made it clear to his attorneys that he wanted to go to trial.” (Id. at 112.) The trial court further noted that Petitioner's preliminary Rule 11 hearing “had come back that he was competent to stand trial, . . . and that there wasn't going to be any further discussion of that, and basically they were moving forward.” (Id. at 110-111.) Ultimately, the trial court issued a ruling from the bench, “denying the petition for post-conviction relief and affirming the sentence that was previously ordered.” (Id. at 114.)
On December 11, 2018, Petitioner filed a Motion for Rehearing (Doc. 7-3, Ex. M, at 39-46), and Motion to Extend Time to File Petition for Review (Id. at 51-52). On February 15, 2019, the trial court denied Petitioner's Motion for Rehearing, stating “[Petitioner] raises similar issues and makes similar arguments as were made at the Evidentiary Hearing on October 26, 2018. This is a case where [Petitioner] wanted to go to Trial. He was informed of his options and knowingly, intelligently, and voluntarily went to Trial.” (Id.) The trial court added that “Defendant's Counsel was not ineffective because he had difficulty communicating with a difficult client.” (Id.) 3
On March 15, 2019, the trial court granted Petitioner's Motion to Extend time to File Petition for Review. (Id. at 53.) On April 17, 2019, Petitioner filed his Petition for Review from Post-Conviction Relief Decision. (Doc. 7-1, Ex. L, at 99-120.) On September 26, 2019, the Arizona Court of Appeals granted review, but denied relief. State v. McKenzie, 2019 WL 4727252 *1 (Ariz.Ct.App. Sept. 26, 2019). (See also Doc. 7-4, Ex. O, at 117.) Therein, the Court of Appeals stated that “We have reviewed the record in this matter, the superior court's order denying the petition for post-conviction relief, and the petition for review. Petitioner has not established an abuse of discretion.” (Id.)
D. Petitioner's Federal Habeas Petition.
On July 20, 2020, Petitioner filed the instant habeas petition. (Doc. 1.) On August 17, 2020, the Court issued a service order directing Respondents answer the Petition, and summarizing Petitioner's claims as follows:
Petitioner raises three grounds for relief:
(1) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to provide medical history records and mental health evaluations, failing to request a competency hearing, and failing to adequately inquire into Petitioner's competency despite Petitioner's long history of mental illness;
(2) Petitioner's Fourteenth Amendment rights were violated when he was tried, convicted, and sentenced even though there was reasonable cause to believe Petitioner may have been mentally incompetent to stand trial; and
(3) Petitioner's Fifth Amendment rights were violated when “he was held to answer for a[n] otherwise infamous crime without presentment or indictment and deprived of life, liberty without due process of law.”(Doc. 4 at 2-3.)
On September 28, 2020, Respondents filed their Response to the Petition. (Doc. 7.) On November 2, 2020, Petitioner filed his Reply. (Doc. 8.)
III. Standard of Review.
A. Exhaustion and Procedural Default.
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless 4 a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule on the merits of his federal claims by “fairly presenting” them to the state's “highest” court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim”).
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See id. at 33. A “state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or 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.” Id. at 31-32. Thus, “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.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See id. at 731-32. Under these principles, a habeas petitioner's claims may be precluded from federal review in two situations.
First, a claim may be procedurally defaulted and barred from federal habeas corpus review when a petitioner failed to present his federal claims to the state court, but returning to state court would be “futile” because the state court's procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If 5 no state remedies are currently available, a claim is technically exhausted, but procedurally defaulted. Coleman, 501 U.S. at 735 n.1.
Second, a claim may be procedurally barred when a petitioner raised a claim in state court, but the state court found the claim barred on state procedural grounds. See Beard v. Kindler, 558 U.S. 53, 59 (2009). “[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claim has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. at 731-32. In this situation, federal habeas corpus review is precluded if the state court opinion relies “on a state-law ground that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989).
A procedurally defaulted claim may not be barred from federal review, however, “if the petitioner can demonstrate either (1) ‘cause for the default and actual prejudice as a result of the alleged violation of federal law,' or (2) ‘that failure to consider the claims will result in a fundamental miscarriage of justice.'” Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (quoting Coleman, 501 U.S. at 732). See also Boyd v. Thompson, 147 F.3d 1124, 1126-27 (9th Cir. 1998) (the cause and prejudice standard applies to pro se petitioners and to those represented by counsel). To establish “cause, ” a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (quoting Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). “‘[P]rejudice' is actual harm resulting from the constitutional violation or error.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish prejudice, a petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Where a petitioner fails to establish either cause or prejudice, the court need not reach the other requirement. See Hiivala v. Wood, 195 F.3d 1098, 1105 n.6 (9th Cir. 1999); Cook, 538 F.3d at 1028 n.13.
B. Merits. 6
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 576 U.S. 257, 268-70 (2015); Musladin v. Lamarque, 555 F.3d 834, 838 (9th Cir. 2009). The AEDPA requires that the habeas court review the “last reasoned decision” from the state court, “which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue.” Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000)).
Clearly established federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal citations and quotations omitted). See also Arrendondo v. Neven, 763 F.3d 1122, 1133-34 (9th Cir. 2014).
Recognizing the duty and ability of our state-court colleagues to adjudicate claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fair minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “If this standard is difficult to meet”-and it is-” that is because it was meant to be.” Id. at 102. We will not lightly conclude that a State's criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. (internal quotation marks 7 omitted). Burt v. Titlow, 571 U.S. 12, 20 (2013).
A state court decision is contrary to federal law if it applied a rule contradicting the governing law as stated in United States Supreme Court opinions, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Brown v. Payton, 544 U.S. 133, 141 (2005).
A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies a governing rule but applies it to a new set of facts in a way that is objectively unreasonable, or if it extends, or fails to extend, a clearly established legal principle to a new set of facts in a way that is objectively unreasonable. See McNeal v. Adams, 623 F.3d 1283, 1287-88 (9th Cir. 2010). The state court's determination of a habeas claim may be set aside under the unreasonable application prong if, under clearly established federal law, the state court was “unreasonable in refusing to extend [a] governing legal principle to a context in which the principle should have controlled.” Ramdass v. Angelone, 530 U.S. 156, 166 (2000). However, the state court's decision is an unreasonable application of clearly established federal law only if it can be considered objectively unreasonable. See, e.g., Renico v. Lett, 130 S.Ct. 1855, 1862 (2010). An unreasonable application of law is different from an incorrect one. See id.; Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005). “That test is an objective one and does not permit a court to grant relief simply because the state court might have incorrectly applied federal law to the facts of a certain case.” Adamson v. Cathel, 633 F.3d 248, 255-56 (3d Cir. 2011). See also Howard v. Clark, 608 F.3d 563, 567-68 (9th Cir. 2010).
Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Brumfield v. Cain, 576 U.S. 305, 322 (2015). The “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Phillips v. Ornoski, 673 F.3d 1168, 1202 n.13 (9th Cir. 2012).
Additionally, the United States Supreme Court has held that, with regard to claims 8 adjudicated on the merits in the state courts, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). See also Murray, 745 F.3d at 998. Pursuant to § 2254(d)(2), the “unreasonable determination” clause, “a state-court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Clark v. Arnold, 769 F.3d 711, 724-25 (9th Cir. 2014) (quoting Burt, 571 U.S. at 20).
If the Court determines that the state court's decision was an objectively unreasonable application of clearly established United States Supreme Court precedent, the Court must review whether Petitioner's constitutional rights were violated, i.e., the state's ultimate denial of relief, without the deference to the state court's decision that the AEDPA otherwise requires. See Lafler v. Cooper, 566 U.S. 156, 170-72; Panetti v. Quarterman, 551 U.S. 930, 953-54 (2007). Additionally, the petitioner must show the error was not harmless: “For reasons of finality, comity, and federalism, habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.'” Davis, 576 U.S. at 266-7.
V. Ground One: Ineffective Assistance of Counsel.
In Ground One, Petitioner alleges that trial counsel provided ineffective assistance because counsel: (1) “[failed] to provide the mental health evaluator of relevant medical history records[;]” (2) “[failed] to request competency hearing to evaluate Petitioner's competency to stand trial[;]” and (3) “[failed] to adequately inquire into Petitioner's competency when he has a long history of mental illness, disability, dating back to 1994.” (Doc. 1 at 5.)
A. Legal Standard.
“To establish ineffective assistance of counsel, [Petitioner] must demonstrate (1) that counsel was ineffective and (2) that counsel's deficient performance prejudiced him.” Smith v. Ryan, 823 F.3d at 1270, 1296 (9th Cir. 2016) (citing Strickland, 466 U.S. at 692). “To establish prejudice, [petitioner] ‘must show that there is a reasonable probability that, 9 but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Porter v. McCollum, 558 U.S. 30, 38-39 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 694(1984)).
A federal court's review of a Strickland claim requires the petitioner 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) (emphasis added). Federal habeas review of a state court ruling on a Strickland claim is subject to “double deference” because “the federal court asks whether it was reasonable for the state court to find whether trial counsel's performance fell within the range of reasonable professional assistance.” Hardy v. Chappell, 849 F.3d 803, 825 & n.10 (9th Cir. 2016) (citing Knowles v. Mirzayance, 556 U.S. 111 (2009)).
B. Failure to Provide Medical History Records to Rule 11 Expert.
Petitioner first alleges that trial counsel was ineffective for failing to provide the mental health evaluator with his relevant medical records. (Doc. 1 at 5.) In his PCR petition, Petitioner raised a similar claim. Specifically, Petitioner alleged he was “denied the effective assistance of counsel by the failure of his counsel to provide the mental health evaluator of relevant medical history records.” (Doc. 7-2, Ex. M, at 21.) In his PCR petition, Petitioner acknowledged that counsel “acted appropriately in seeking a[] Rule 11 examination, ” but argued that “no effort was made to obtain [Petitioner's] past medical records regarding his mental health and emotional history.” (Doc. 7-2, Ex. M, at 21.) The record shows that Petitioner's Rule 11 evaluation was completed by Dr. Mark Harvancik. However, for medical confidentiality reasons, Petitioner did not attach Dr. Harvancik's report to the PCR petition. Instead, Petitioner provided the trial court with following summary of Dr. Harvancik's Rule 11 report:
McKenzie was examined by Dr. Mark Harvancik and his report reflected that McKenzie reported he had been assessed as disabled based on his bipolar diagnosis; that he had taken Risperdal, Zyprexa and Lithium; that he had been hospitalized for 8 days in 1999 or 2000; that he had thought about hurting himself but had never attempted suicide. McKenzie also reported that he did not know what kind of sentence he was facing and that he had only recently10
met his defense lawyer. Dr. Harvancik concluded that McKenzie had bipolar disorder “by report.” Dr. Harvancik concluded also that McKenzie was competent to stand trial. [Doc. 7-3, Ex. M, at 20], Dr. Harvancik's report. (Dr. Harvancik's Report is in the Court's file. It is not attached here for medical confidentiality reasons.)(Doc. 7-2, Ex. M, at 22 (emphasis added).) Additionally, Petitioner attached only one medical record to his PCR petition, which purports to show that Petitioner had been enrolled at the Mohave Mental Health Clinic in June 2000 and had been diagnosed as having “schizioaffective disorder.” (Id.) At the evidentiary hearing on the PCR petition, Petitioner's trial counsel testified that he was aware that Petitioner had been hospitalized for bipolar disorder in the past, but trial counsel had not attempted to obtain any records from that incident or any other mental health records. (Doc. 7-4, Ex. N, at 90-91.)
Respondent notes that “[t]here are two types of schizoaffective disorder, bipolar and depressive. https://www.mayoclinic.org/diseases-conditions/schizoaffective-disorder/sym ptoms-causes/syc-20354504 (last visited September 21, 2020).” (Doc. 7 at 14.)
After the evidentiary hearing, the trial court denied Petitioner's PCR petition without detailing its reasons for denying the IAC claim at issue here. (See Doc. 7-4, Ex. N, at 114.) The trial court also denied Petitioner's subsequent motion for rehearing without explanation with respect to this claim. (Doc. 7-3, Ex. M, at 50.) The Court of Appeals affirmed the trial court's denial of PCR relief, stating only that: “We have reviewed the record in this matter, the superior court's order denying the petition for post-conviction relief, and the petition for review. Petitioner has not established an abuse of discretion.” (Doc. 7-4, Ex. O, at 117.)
Here, although the state courts failed to provide an explanation for their decision to deny Petitioner's PCR petition, Petitioner's claims in Ground One still fail because Petitioner does not establish that the state courts' rulings are objectively unreasonable. Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (“[W]hen the state court does not supply reasoning for its decision, we are instructed to engage in an independent review of the record and ascertain whether the state court's decision was objectively unreasonable. Crucially, this is not a de novo review of the constitutional question. Rather, even a strong 11 case for relief does not mean the state court's contrary conclusion was unreasonable.”). See also Solnicka v. Ryan, 2018 WL 11188821 at *12 (D. Ariz. 2018) (“Where no reasoned decision is available, the habeas petitioner still has the burden of ‘showing there was no reasonable basis for the state court to deny relief.' Richter, 562 U.S. at 98.”).
Independent review of the record shows the state court decisions were not objectively unreasonable. There is no evidence that Petitioner's single medical record from June 2000, which shows Petitioner was diagnosed with a schizoaffective disorder, was probative of Petitioner's competency to stand trial nearly 15 years later in May of 2015. And although Petitioner alleges that additional medical evidence exists that would have shown his incompetence if only counsel would have attempted to obtain it, Petitioner does not provide any description of what those records are or how they would establish his incompetency. What is more, Plaintiff's Rule 11 evaluator, Dr. Harvancik, was aware of Petitioner's claims of other medical impairments, including his bi-polar disorder and history of mental health related medical stays. But Dr. Harvancik still opined that Petitioner was competent to stand trial.
Accordingly, Petitioner has failed to show that the state courts' rejection of this claim in Ground One was an unreasonable application of Strickland.
C. Failure to Request Competency Hearing.
Petitioner next argues that trial counsel was ineffective for failing to request a competency hearing. (Doc. 1 at 5; Doc. 8 at 10-16.) Specifically, Petitioner asserts that there was “sufficient evidence to give rise to a doubt in the mind of the court as to whether defendant [was] competent” and it was “a mandatory duty of the court to hold a hearing.” (Doc. 8 at 12.) Thus, “the failure of counsel to request a competency hearing violated petitioner's due process right to a fair trial.” (Id.) Petitioner's claim is unexhausted and procedurally defaulted because he did not fairly present this issue as a federal claim in the state courts.
[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced12
specific provisions of the federal constitution or statutes or cited to federal case law.Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Petitioner did not assert a federal claim in his state court proceedings on this issue. Thus, he did not exhaust this claim. Petitioner does not argue cause and prejudice to excuse the procedural default of his claim. Petitioner's claim is unexhausted and procedurally defaulted.
Even assuming arguendo that Petitioner's claim was exhausted, and the Court liberally construed his IAC claims brought in the PCR to include his present claim, Petitioner's claim still fails. Under the Due Process Clause, a state may not try a person who is mentally incompetent. See Drope v. Missouri, 420 U.S. 162, 171 (1975). To be competent to stand trial, a defendant must demonstrate “a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also Ariz. R. Crim. P. 11. 1 (“A person shall not be tried, convicted, sentenced or punished for a public offense, except for proceedings pursuant to [Ariz.Rev.Stat.] § 36-3707(D), while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense.”).
Counsel is not required to request a competency hearing in every instance in which a defendant has exhibited signs of mental illness. See Drope, 420 U.S. 162 at 180. (“There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.”) However, “[c]ounsel's failure to move for a competency hearing violates the defendant's right to effective assistance of counsel when ‘there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been 13 raised and fully considered.'” Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir.2001)).
Here, Petitioner's claim is meritless. Petitioner's trial counsel did file a motion for a preliminary Rule 11 evaluation, and that evaluation resulted in a determination that Petitioner was competent to stand trial. See Garfias-Ortega v. Ryan, No. CV-13-01450-PHX-JJT, 2014 WL 3516919, at *19 (D. Ariz. July 16, 2014) (“Petitioner has not established prejudice because he received a Rule 11 competency evaluation . . . and the trial court found him competent to proceed.”). Therefore, Petitioner's claim fails to satisfy the first prong of Strickland.
What is more, even if trial counsel had sought and received an additional competency evaluation, Petitioner fails to establish that the result of that hearing would have found Petitioner unfit to stand trial. Accordingly, Petitioner's claim also fails to satisfy the second prong of Strickland. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (petitioner must “affirmatively prove prejudice”) (citing Strickland, 466 U.S. at 693).
D. Failure to Inquire About Petitioner's Incompetency.
Lastly, Petitioner argues that trial counsel was ineffective because he “fail[ed] to adequately inquire into [Petitioner's] competency in light of his history of mental illness.” (Doc. 8 at 16-18.) As with his previous claim, Petitioner did not raise this claim in the state courts. Nor does Petitioner argue cause and prejudice to excuse the procedural default of his claim. Petitioner's claim is unexhausted and procedurally defaulted.
Petitioner's claim also fails on the merits because he does not satisfy the second prong of Strickland. “When the alleged error by counsel is a failure to properly investigate a client's competency, the prejudice prong is evaluated by determining whether a petitioner would have been found competent had he been evaluated for competency.” Harris v. Wong, No. 06-CV-1747 JLS JMA, 2010 WL 546071, at *11 (S.D. Cal. Feb. 10, 2010) (citing Grant v. Brown, 312 Fed. App'x. 71, 73 (9th Cir. 2009); Charles v. Farwell, 263 Fed. App'x. 644, 646 (9th Cir. 2008)).
Here, Petitioner received a Rule 11 evaluation and was found competent to stand 14 trial, and Petitioner fails to allege any evidence that would have been discovered by trial counsel during the course of an “adequate inquiry” into Petitioner's competency that would result in a different competency determination. Accordingly, because Petitioner fails to show that he suffered prejudice as a result of trail counsel's “deficient” inquiry, Petitioner's claim fails to satisfy the second prong of Strickland and must be dismissed.
VI. Ground Two.
In Ground Two, Petitioner argues that his “Fourteenth Amendment rights were violated because he was tried, convicted, and sentenced when he was not competent to stand trial.” (Doc. 8 at 18; Doc. 1 at 7.)
Petitioner's claim is unexhausted and procedurally defaulted because Petitioner failed to properly raise this claim in the state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court ... thereby alerting that court to the federal nature of the claim”). In Arizona claims are considered “exhausted” in non-capital cases when considered by the Arizona Court of Appeals. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Petitioner seems to acknowledge that he did not raise this claim in the Arizona Court of Appeals. (See Doc. 1 at 7 (leaving part (c)(1) blank, which asks “If you appealed from the judgment of conviction, did you raise this issue?”).)
In his Reply, Petitioner re-asserts many of his same arguments raised in Ground One of his Petition, specifically: that “trial counsel did not investigate the Petitioner's medical history even after he had requested a Rule 11 examination” (doc. 8 at 20); that “the trial court has a continuing duty to inquire into Petitioner's competency as does counsel” (id. at 21); and “the trial court in this case did not order or conduct a competency hearing when there was significant reasonable cause to believe that the Petitioner may presently be suffering from a mental illness, defect, or disease[.]” (Id.)
The only discussion of Ground Two in Petitioner's Reply that is not repetitive of earlier claims is his assertion that: “Petitioner's due process of the Fourteenth Amendment was violated when the state court ruled that he was competent without a competency 15 hearing or in accordance with the established procedures, requirements pursuant to Ariz. R. Crim. P. Rule 11.1 and A.R.S. § 13-4503.” (Doc. 8 at 21.)
Petitioner's claim is procedurally defaulted because this is the first instance in which Petitioner raises this claim. Petitioner did not “fairly present” this claim in any forum, let alone a proper one, and is now time-barred from doing so. “[T]he apparent futility of presenting claims to state courts does not constitute cause for procedural default.” Roberts v. Arave, 847 F.2d 528, 530 (9th Cir. 1988) (requiring habeas petitioners to first present constitutional arguments in state court, even if that court previously rejected the same arguments). Petitioner fails to provide an excuse for the procedural default.
VII. Ground Three.
In Ground Three Petitioner argues that his Fifth Amendment rights were violated when “he was held to answer for a[n] otherwise infamous crime without presentment or indictment and deprived of life, liberty without due process of law.” (Doc. 1 at 8.) Petitioner acknowledges that he did not raise this claim on direct appeal or in his post-conviction proceedings. (Id. at 9.) Petitioner's claim is unexhausted and procedurally defaulted. See Baldwin, 541 U.S. at 29.
In his Reply, Petitioner does not even discuss Ground Three, much less attempt to present an excuse for the default. (See Doc. 8.) Accordingly, Petitioner's claim in Ground Three is also unexhausted and procedurally defaulted without excuse.
VIII. Conclusion.
Based on the above analysis, the Court finds that Petitioner's claims either fail on the merits or are unexhausted and procedurally defaulted without excuse. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave 16 to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 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 14 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. 17