Opinion
CV-20-0511-TUC-SHR (EJM)
01-11-2023
Michael William McKerlie, Petitioner, v. David Shinn, et al. Respondents.
WO
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Currently pending before the Court is Petitioner Michael William McKerlie's pro se Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 15). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 24), and Petitioner has replied (Doc. 30). The Amended Petition (Doc. 15) is ripe for adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for Report and Recommendation. The Magistrate Judge recommends that the District Court dismiss the Amended Petition (Doc. 15).
Rules of Practice of the United States District Court for the District of Arizona.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Charge, Trial, and Sentencing
The Arizona Court of Appeals stated the facts as follows:
As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007); Wainwright v. Witt, 469 U.S. 412, 426 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519 (1982).
In July 2011, McKerlie and his wife, B.M. separated. After moving out, B.M. inadvertently discovered two files on her computer, one called “showgirls” and another called “my childhood.” B.M. suspected both that McKerlie had downloaded these files to her computer and that the images could be child pornography, so she reported the files to law enforcement.
During the ensuing investigation, a law enforcement officer discovered that the titles of the two filed B.M. had found on the computer were “indicative of child pornography.” After closer inspection, the investigating agent discovered five images, which served as the basis for the charges against McKerlie. Those images depicted “a prepubescent female, nude” with the focus of the image “on the genitalia of the child.” The computer also contained a history of search terms that were “indicative of searches for child pornography,” such as “preteen pictures,” “nude preteen,” “daughter torrent,” and “daughter landfill torrent.” Forensic evidence suggested that McKerlie used BitTorrent, a peer-to-peer file sharing software, to download the images.Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2015-0305, Mem. Decision at 11-12(Ariz.Ct.App. Mar. 14, 2017) (Exh. “C”) (Doc. 24-1). On May 6, 2014, Petitioner was indicted on five (5) counts of sexual exploitation of a minor under fifteen, all class two felonies and dangerous crimes against children. Answer (Doc. 24), State v. McKerlie, No. CR20141915-001, Direct Indictment (Pima Cnty. Super. Ct. May 6, 2014) (Exh. “A”) (Doc. 24-1).
Page citations refer to the CM/ECF page numbers, unless otherwise noted.
On July 2, 2015, following a jury trial, Petitioner was found guilty of all five (5) counts charged. Answer (Doc. 24), State v. McKerlie, No. CR20141915-001, Minute Entry (Pima Cnty. Super. Ct. July 2, 2015) (Exh. “B”) (Doc. 24-1). On August 10, 2015, Petitioner was sentenced to a presumptive twenty-eight (28) year term of imprisonment in the Arizona Department of Corrections for each count, all to be served consecutively. Answer (Doc. 24), State v. McKerlie, No. CR20141915-001, Minute Entry-Court Trial Re: Prior Convictions/Sentence of Imprisonment (Pima Cnty. Super. Ct. Aug. 13, 2015) (Exh. “D”) (Doc. 24-1).
B. Direct Appeal
On August 14, 2015, Petitioner filed his Notice of Appeal. Answer (Doc. 24), Notice of Appeal, State v. McKerlie, No. CR2014-1915-001 (Pima Cnty. Super. Ct. Aug. 14, 2015) (Exh. “E”) (Doc. 24-1). On May 9, 2016, counsel for Petitioner filed an Opening Brief asserting three (3) issues for review. Answer (Doc. 24), Appellant's Opening Br., State v. McKerlie, No. 2 CA-CR 2015-0305 (Ariz.Ct.App. May 9, 2016) (Exh. “F”) (Doc. 24-1). First, Petitioner asserted that the trial court erred when it admitted evidence of his prior conviction for possession of child pornography, and allowed the prosecution to argue that the prior conviction showed a pattern of behavior. Id., Exh. “F” at 34, 54-67. Petitioner urged that the admission and use of his prior conviction “violated the Arizona Rules of Evidence and denied [Petitioner] a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 4 and 24 of the Arizona Constitution.” Id., Exh. “F” at 55. Petitioner argued that “[t]he pattern of behavior theory presented to the jury was, in fact, improper propensity evidence prohibited by Rule 404(b)[, Arizona Rules of Evidence].” Id. Petitioner observed that “[a]dmission of bad character/propensity evidence also undermines the presumption of innocence and, thus, specifically violates the United States Constitution when improperly admitted.” Id., Exh. “F” at 57. Petitioner also urged that the admission of such evidence “[u]ndermin[es] the presumption of innocence [and] specifically violates the due process clause of the Fourteenth Amendment to the United States Constitution.” Answer (Doc. 24), Appellant's Opening Br. at 58, State v. McKerlie, No. 2 CA-CR 2015-0305 (Ariz.Ct.App. May 9, 2016) (Exh. “F”) (Doc. 24-1). Petitioner argued that the State's request to admit his prior conviction for all of the purposes listed in Rule 404(b), Arizona Rules of Criminal Procedure, was improper because the State did not demonstrate each reason's applicability. Id., Exh. “F” at 58-64. As such, Petitioner asserted that he was prejudice and deprived of “his right to a fair trial as protected by the Sixth and Fourteenth Amendments to the United States Constitution.” Id., Exh. “F” at 65.
Second, Petitioner asserted that he was deprived of “his state constitutional right to be tried by a 12 person jury because his waiver was not knowing, voluntary, and intelligent.” Id., Exh. “F” at 68. Petitioner argued that he could not have knowingly, voluntarily, and intelligently waived his right to a twelve (12) person jury because he had not been told that under the Arizona Constitution “he had the right to insist his sentence not exceed 30 years imprisonment.” Id., Exh. “F” at 70.
Finally, Petitioner argued that “[t]he sentencing scheme for sexual exploitation of a minor under the age of fifteen, punishable under A.R.S. §§ 13-705 and 13-3553(c), when applied to possession of child pornography, violate[d] [his] right to be free from cruel and unusual punishment and his right to equal protection under the law.” Answer (Doc. 24), Appellant's Opening Br. at 74, State v. McKerlie, No. 2 CA-CR 2015-0305 (Ariz.Ct.App. May 9, 2016) (Exh. “F”) (Doc. 24-1). Petitioner acknowledged that “the Arizona Supreme Court squarely decided that this sentencing scheme does not violate the Eighth Amendment[,]” but sought to “preserve[] his objection . . . for further review by the Arizona Supreme Court or federal courts.” Id., Exh. “F” at 75-76. Petitioner further asserted that “[t]he sentencing scheme violates [his] right to equal protection because his charges are not similar to the remainder of those offenses enumerated in § 13-705, yet he is being punished more severely than those who commit violent or sexual offenses directly against children.” Id., Exh. “F” at 81.
On March 14, 2017, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. See Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2015-0305, Mem. Decision (Ariz.Ct.App. March 14, 2017) (Exh. “C”) (Doc. 24-1). The appellate court considered Petitioner's argument regarding Rule 404(b) evidence and observed that “[b]ecause B.M. found the files on her computer, and McKerlie argued in defense that the evidence did not show who had downloaded the images, identity was in issue.” Id., Exh. “C” at 13. Noting the use of similar search terms with identical misspellings, as well as other evidence, the appellate court concluded that Petitioner's prior and current “crimes have similarities with one another ‘when normally there could be expected to be found differences.'” Id., Exh. “C” at 14 (quoting State v. Roscoe, 145 Ariz. 212, 217, 700 P.2d 1312, 1317 (1984)). The appellate court held that “the trial court did not abuse its discretion in admitting the 2012 conviction evidence to prove McKerlie's identity.” Id., Exh. “C” at 14. The appellate court further held that because “the jury could infer McKerlie's identity as the person downloading the pornography from the similarities between the 2012 conviction and the current case[,]” there was no due process violation. Id., Exh. “C” at 17.
Next, the appellate court considered Petitioner's contention “that his right under the Arizona constitution to a twelve-person jury was violated ‘because his waiver was not knowing, voluntary, and intelligent.'” Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2015-0305, Mem. Decision at 18 (Ariz.Ct.App. Mar. 14, 2017) (Exh. “C”) (Doc. 241). “Because McKerlie did not present this argument to the trial court, [he] [] forfeited review for all but fundamental error.” Id., Exh. “C” at 18 (citing State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (Ariz. 2005)). The appellate court reviewed the trial court's discussion with Petitioner on the record regarding proceeding with less than twelve (12) jurors. Id., Exh. “C” at 18-19. The appellate court “conclude[d] the trial court complied with all applicable procedures to ensure that McKerlie knowingly, voluntarily, and intelligently waived his right to a twelve-person jury.” Id., Exh. “C” at 19 (citing Ariz. R. Crim. P. 18.1(b)). The appellate court also considered Petitioner's contention that by waiving his right to a twelve (12) person jury, he could not be sentenced to more than thirty (30) years imprisonment. Id., Exh. “C” at 19-20. The appellate court found Petitioner's argument erroneous and held that his convictions and sentences were appropriate. Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 20150305, Mem. Decision at 20 (Ariz.Ct.App. Mar. 14, 2017) (Exh. “C”) (Doc. 24-1).
Regarding Petitioner's final arguments about the constitutionality of his sentence for sexual exploitation of a minor, the appellate court observed that it has “no authority to overrule or disregard the decisions of [its] supreme court.” Id., Exh. “C” at 20 (quoting State v. Brown, 233 Ariz. 153, ¶ 27, 310 P.3d 29, 38 (Ariz.Ct.App. 2013). As such, the appellate court rejected Petitioner's arguments regarding any Eighth Amendment violation. Id., Exh. “C” at 20. The appellate court also rejected Petitioner's invitation to overrule a prior appellate ruling rejecting his argument for an equal protection violation. Id., Exh. “C” at 20-21.
Petitioner did not seek review with the Arizona Supreme Court. See Amended Petition (Doc. 15) at 4.
C. Post-Conviction Relief Proceeding
1 PCR Petition
On March 16, 2017, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 24), Petr.'s Not. of PCR, State v. McKerlie, No. CR20141915-001 (Pima Cnty. Super. Ct. Mar. 16, 2017) (Exh. “G”) (Doc. 24-1). On March 2, 2018, Petitioner's PCR counsel filed a notice pursuant to Montgomery v. Sheldon (I), in which counsel stated that she was “unable to find any arguably meritorious legal issues to raise in a Petition for Post-Conviction Relief.” See Answer (Doc. 24), Petr.'s Not. in lieu of Pet. for PCR, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Mar. 2, 2018) (Exh. “H”) (Doc. 24-1).
Montgomery v. Sheldon (I), 181 Ariz. 256, 889 P.2d 614 (1995).
The Arizona Supreme Court has held that in Rule 32 proceedings, where counsel concludes that the proceeding has no merit, “a pleading defendant has a right under Ariz. Const. art. 2 § 24 to file a pro se PCR petition.” Montgomery (I), 181 Ariz. at 260, 889 P.2d at 618. Subsequently, the Arizona Supreme Court affirmed this rule and reiterated:
If, after conscientiously searching the record for error, appointed counsel in a PCR proceeding finds no tenable issue and cannot proceed, the defendant is entitled to file a pro se PCR.State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996).
On September 7, 2018, Petitioner filed an Amended Petition for Post-Conviction Relief. Answer (Doc. 24), Petr.'s Pet. for PCR, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Petitioner raised six (6) grounds for relief. See id., Exh. “I.” First, Petitioner asserted insufficiency of the evidence. Id., Exh. “I” at 98-102. Petitioner argued that the State failed to prove beyond a reasonable doubt that he possessed the photographs at issue for the purpose of sexual stimulation. Id., Exh. “I” at 98. According to Petitioner, this failure violated his Fourteenth Amendment due process rights. Id., Exh. “I” at 100. Petitioner also claimed that defense counsel's failure to address the intent requirement was ineffective assistance. Answer (Doc. 24), Petr.'s Pet. for PCR at 100-101, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Petitioner urged that his appellate counsel was also ineffective for failing to address this issue. Id., Exh. “I” at 101-102.
Additionally, Petitioner alleged four (4) check-the-box claims on the PCR Petition form, including 1) “[t]he introduction at trial of evidence obtained by an unconstitutional search and seizure”; 2) “[t]he denial of the constitutional right to representation by a competent lawyer at every critical stage of the proceeding”; 3) “[t]he abridgement of any other right guaranteed by the constitution or the laws of this state, or the constitution of the United States, including a right that was not recognized as existing at the time of the trial if retrospective application of that right is required”; and 4) the lack of jurisdiction of the court which entered the conviction or sentence.” Answer (Doc. 24), Petr.'s Pet. for PCR at 93-94, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1).
Next, Petitioner argued that Section 13-3551(5) of the Arizona Revised Statutes is overbroad. Id., Exh. “I” at 103-109. Petitioner asserted that “the State is still required to prove that the photographer took the picture for the purpose of ‘sexual stimulation'” and because Petitioner was not accused of taking the photographs, only possessing them, his behavior should not have been criminalized. Id., Exh. “I” at 104 (citing A.R.S. § 133551(5)). The Petitioner further alleged that the statute's focus on the viewer's intent results in an overbroad application to different media, thereby implicating his First Amendment rights. Id., Exh. “I” at 105-107. Petitioner denied possessing the pictures, noting that if even if he did, the State failed to prove that he “did so with the intent of being sexually stimulated.” Id., Exh. “I” at 107-108. Petitioner further asserted that his due process rights under the Fourteenth Amendment, as well as his Fourth Amendment rights were violated. Answer (Doc. 24), Petr.'s Pet. for PCR at 108-109, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Petitioner also alleged that his trial, appellate, and PCR counsel all “failed to recognize this constitutional issue” rendering their assistance ineffective. Id., Exh. “I” at 109.
Third, Petitioner alleged that trial counsel was ineffective because he failed to object to the pictures meeting the definition of “exploitive exhibition.” Id., Exh. “I” at 109-111. Based on his memory, Petitioner reviewed the contents of each photograph asserting that each failed to meet the criteria of the criminal statute and showed “innocent behavior.” Id. Petitioner argued that these images depicted activity protected by the First Amendment. Id. Petitioner urged that his trial counsel “should have objected to each picture as not being illegal to possess, by definition of the statute petitioner stands convicted of.” Answer (Doc. 24), Petr.'s Pet. for PCR at 111, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1).
Fourth, Petitioner again alleged ineffective assistance of trial and appellate counsel. Id., Exh. “I” at 112-14. Petitioner argued that trial counsel was ineffective because he failed to challenge whether the pictures depicted an actual child. Id., Exh. “I” at 112-13. Petitioner also challenged the State's alleged failure to prove that the images were of an ''actual child” by identifying the victim. Id., Exh. “I” at 113. Petitioner asserted that “[a]ppellate counsel should have also moved for vacating the sentence because the trial judge did not give specific instructions to the jury that the state was required to prove beyond a reasonable doubt that the images were of an actual child.” Id., Exh. “I” at 114.
Fifth, Petitioner asserted that both trial and appellate counsel rendered ineffective assistance based upon their alleged failure to challenge that the victim was a minor. Answer (Doc. 24), Petr.'s Pet. for PCR at 114-16, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Petitioner alleges that “the State's only evidence in the record is Special Agent Campbell's testimony.” Id., Exh. “I” at 114. Petitioner argued that “Agent Campbell's opinions are solely based on his observation of the images[] [and] . . . does not give any first hand knowledge of the alleged victim nor does the State produce the alleged victim nor even identify the alleged victim.” Id., Exh. “I” at 115. Petitioner opined that “neither is sufficient grounds for proof beyond a reasonable doubt.” Id., Exh. “I” at 116.
Sixth, Petitioner asserted that his “sentence was illegal because the State failed to prove that there was an actual victim under 15 years of age.” Id., Exh. “I” at 116. Petitioner argued that “the State offered no proof beyond a reasonable doubt that is not based on unallowable inferences . . . [and] that the charged images [we]re of an actual child under the age of 15.” Answer (Doc. 24), Petr.'s Pet. for PCR at 117, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Petitioner further urged that his trial counsel was ineffective “by not challenging this sentence” and his due process rights were violated. Id.
2. Rule 32 Court Order
On January 8, 2019, the Rule 32 court issued its order denying Petitioner's pro se Petition for Post-Conviction Relief. Answer (Doc. 24), State v. McKerlie, No. CR20141915-001, Ruling-In Chambers Ruling Re: Pet. for PCR (Pima Cnty. Super. Ct. Jan. 8, 2019) (Exh. “J”) (Doc. 24-2). The Rule 32 court reviewed Section 13-3553, Arizona Revised Statutes, prohibiting sexual exploitation of minors. Id., Exh. “J” at 2-3. In response to Defendant's claims that “the State failed to prove any of the charged images depicted a minor engaged in exploitive exhibition,” the court observed that “the State offered Special Agent Campbell's testimony to prove the sexual nature of the images and, specifically, the focus of the images being on the genital area.” Id., Exh. “J” at 3. As such, the Rule 32 Court found “the State offered sufficient evidence to prove beyond a reasonable doubt that the charged images were for the purpose of sexual stimulation[,] . . . and that the sexual stimulation requirement of A.R.S. § 13-3551(5) is not overbroad in its application.” Id., Exh. “J” at 3.
Next, the Rule 32 court recognized that “for a defendant to raise a colorable ineffective assistance of counsel claim, he must fulfill a two-prong test[,] . . . [including] affirmatively show[ing] his counsel's performance fell below objectively reasonable standards of representation as measured by prevailing professional norm[,] . . . [and] demonstrating] counsel's poor performance prejudiced him.” Id., Exh. “J” at 3 (citing Strickland v. Washington, 466 U.S. 668 (1984); then citing State v. Jackson, 97 P.3d 113, 114 (Ariz. 2005)). The court reiterated Petitioner's ineffective assistance claims against trial and appellate counsel to include “ failing to raise the following defenses: (1) the images were not for the purpose of sexual stimulation, (2) the images did not meet the definition of exploitive exhibition, (3) the images did not depict[] an actual child, and (4) the images did not depict a child under the age of fifteen.” Answer (Doc. 24), State v. McKerlie, No. CR20141915-001, Ruling-In Chambers Ruling Re: Pet. for PCR at 3 (Pima Cnty. Super. Ct. Jan. 8, 2019) (Exh. “J”) (Doc. 24-2). The Rule 32 court also noted that Petitioner alleged ineffective assistance of trial counsel “for not challenging the constitutionality of the definition of exploitive exhibition as overbroad.” Id., Exh. “J” at 3. Regarding trial counsel's actions, the Rule 32 court held that his “decision to focus on one defense over another is a trial strategy[,] [and] . . . f[ell] withing objectively reasonable standards of representation.” Id., Exh. “J” at 4. The court further found that “trial counsel was not ineffective for failing to challenge the constitutionality of the definition of exploitive exhibition[,] . . . [because he was not required] to raise an issue unsupported by controlling law.” Id., Exh. “J” at 4. Similarly, the Rule 32 court found that Petitioner “fail[ed] to demonstrate that Appellate counsel's strategic decisions reveal ineptitude, inexperience, or lack of preparation.” Answer (Doc. 24), State v. McKerlie, No. CR20141915-001, Ruling-In Chambers Ruling Re: Pet. for PCR at 4 (Pima Cnty. Super. Ct. Jan. 8, 2019) (Exh. “J”) (Doc. 24-2). As such, Petitioner's ineffective assistance of counsel claims were denied. Id., Exh. “J” at 4.
Finally, the Rule 32 court considered Petitioner's challenge that “his enhanced sentence is illegal because the State failed to prove there was an actual child victim under the age of fifteen.” Id., Exh. “J” at 4. The court reviewed Arizona's requirements for enhanced sentencing for dangerous crimes against children, and denied Petitioner's claim, finding that “the State offered sufficient evidence to prove beyond a reasonable doubt the charged images depicted an actual child victim under the age of fifteen.” Id., Exh. “J” at 4.
3. PCR Appeal
On March 7, 2019, Petitioner sought review of the Rule 32 court's order. Answer (Doc. 24), State v. McKerlie, Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2). Petitioner presented five (5) claims for relief, including whether the trial court abused its discretion in finding that 1) A.R.S. § 13-3551(5) did not violate the constitution; 2) sufficient evidence supported Petitioner's conviction; 3) trial counsel provided effective assistance; 4) appellate counsel provided effective assistance; and 5) Petitioner's sentence was legal. Id., Exh. “L” at 13-27.
Regarding the constitutionality of A.R.S. § 13-3551(5), Petitioner asserted that in his PCR petition, he argued that the statute was “overbroad because it does not exclude depictions protected by the first amendment[;] . . . the statute is void-for-vagueness because it gives no direction to law enforcement or citizens about what material is excluded nor what is required to base reasonable doubt or prove ‘for the sexual stimulation of the viewer,' the statute encourages arbitrary enforcement based upon the personal predictions of individual officers, cases [sic] the judicial branch of government to be substituted for the legislative, and is aimed at controlling the private thoughts of individuals.” Id., Exh. “L” at 14. Petitioner took issue with the Rule 32 court's alleged failure “to address any of th[ose] issues.” Id., Exh. “L” at 14. Petitioner also acknowledged that he “d[id] not use the words void-for-vagueness in his petition . . . this [wa]s simply because he did not know that overbroadness and void-for vagueness is [sic] two separate things.” Id., Exh. “L” at 16. Petitioner reiterated the arguments he made in his PCR petition, including that A.R.S. § 13-3551(5) criminalizes innocent behavior and that SA Campbell's testimony was insufficient to find him guilty. Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR at 14-20, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2).
Next, Petitioner repeated his argument that SA Campbell's testimony was insufficient to sustain Petitioner's conviction. Id., Exh. “L” at 21-24. Petitioner posited that neither “Special Agent Campbell, nor any witness, nor the State ever alleged that Mr. McKerlie possessed the pictures for the purpose of sexual stimulation[,] [and] [b]ecause of this fact the jury and the court would have had to impermissively [sic] presume this on their own.” Id., Exh. “L” at 21 (emphasis in original). Petitioner reiterated that the evidence did not prove that “the subject [was] a victim, . . . [or] the images illegal.” Id., Exh. “L” at 22. As such, Petitioner alleged a violation of his Due Process rights. Id., Exh. “L” at 24.
Third, Petitioner asserted that the trial court abused its discretion by failing to find his trial counsel ineffective for allegedly failing 1) to challenge the validity of the indictment; and 2) to provide a meaningful defense. Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR at 25, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2). Petitioner challenged the sufficiency of the indictment, as well as the sufficiency of the evidence demonstrating criminal activity. Id., Exh. “L” at 25.
Fourth, Petitioner argued that the trial court abused its discretion in determining that his sentence was legal. Id., Exh. “L” at 26. Petitioner challenged the sufficiency of the evidence regarding the subject's age and whether or not they were an actual person. Id., Exh. “L” at 26. Petitioner opined that these alleged insufficiencies violated his due process rights and rendered his sentence illegal. Id., Exh. “L” at 26.
Finally, Petitioner asserted that the trial court abused its discretion in determining that appellate counsel's assistance was effective. Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR at 27, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2). Petitioner argued that because appellate counsel allegedly did not seek to have the photographs unsealed, he failed to investigate the evidence thereby providing ineffective assistance. Id., Exh. “L” at 27. Petitioner further complained that his appellate counsel retired after authoring Petitioner's appellate brief and was unavailable to write the reply, rendering his assistance ineffective. Id., Exh. “L” at 27.
4. Court of Appeals PCR Decision
On June 6, 2019, the Arizona Court of Appeals issued its memorandum decision granting review, but denying relief. Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2019-0042-PR, Mem. Decision at 8 (Ariz.Ct.App. June 6, 2019) (Exh. “K”) (Doc. 242). The appellate court detailed that “[o]n review, McKerlie again attacks the sufficiency of the evidence, claims the definition of ‘exploitive exhibition' is unconstitutionally broad, and asserts his enhanced sentences are improper[,] . . . [and] asserts his trial and appellate counsel were ineffective.” Id., Exh. “K” at 8. Regarding the claims other than ineffective assistance of counsel, the appellate court held that “the[] claims could have been raised on appeal[,] . . . [and] [accordingly, [Petitioner] has waived them and cannot raise them in this proceeding.” Id., Exh. “K” at 8-9 (citing Ariz. R. Crim. P. 32.2(a)(3)).
The appellate court recognized that “[t]o state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant.” Id., Exh. “K” at 9 (citing State v. Bennett, 146 P.3d 63, 68 (Ariz. 2006); then citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). First, the appellate court declined to address Petitioner's assertion “that trial counsel was ineffective in failing to challenge his indictment[,] . . . [because] [it] do[es] not address claims not first raised below.” Id., Exh. “K” at 9 (citing State v. Ramirez, 616 P.2d 924, 928 (Ariz.Ct.App. 1980). Next, the court considered Petitioner's argument that “trial counsel was ineffective in failing to argue that his possession of the images was ‘legal' and appellate counsel was ineffective for failing to raise his challenges to the sufficiency of the evidence and the constitutionality of § 13-3551(5).” Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2019-0042-PR, Mem. Decision at 9 (Ariz.Ct.App. June 6, 2019) (Exh. “K”) (Doc. 242). The appellate court surmised that “[t]hese arguments apparently rest on [Petitioner's] contention that the state was required to prove he possessed the images for the purpose of sexual stimulation.” Id., Exh. “K” at 9. The court distinguished Petitioner's case from the facts surrounding the legal authority that he relied upon, and held that “[b]ecause the state was not required to show that McKerlie intended to use the images for sexual stimulation, his claim that trial and appellate counsel were ineffective for failing to raise that and related arguments necessarily fails.” Id., Exh. “K” at 9-10. The appellate court further found Petitioner's “remaining claims [were] waived and [could not] be raised[.]” Id., Exh. “K” at 10.
On December 5, 2019, the Arizona State Supreme Court denied review. Answer (Doc. 24), State v. McKerlie, No. CR-19-0222-PR, Mem. (Ariz. Dec. 5, 2019) (Exh. “P”) (Doc. 24-3).
D. The Instant Habeas Proceeding
On November 20, 2020, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). On May 24, 2021, Petitioner his Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 15), which is currently pending before the Court. Petitioner asserts four (4) grounds for relief, including 1) “[t]he pictures in this case are protected expression under the First Amendment”; 2) “[t]here is a reasonable possibility the jury impermissibly based their verdict on their belief that I may have possessed these pictures for sexual stimulation, rather than on whether the photographer took them for the purpose of sexually stimulating the viewer”; 3) he was denied his due process and fair trial rights, because “[a]lthough the Arizona Court of Appeals said in it[]s ruling . . . [that] the State was required to prove beyond a reasonable doubt the photographer who took the[] 5 pictures did so for the purpose of sexual stimulation of the viewer[,] the court ignored the fact the State did not as much as make the allegation such was the case, much less prove it”; and 4) he received ineffective assistance of trial counsel. See Amended Petition (Doc. 15).
On July 19, 2021, Respondents filed their Limited Answer to Petition for Writ of Habeas Corpus (Doc. 24) and Petitioner replied (Doc. 30).
II. STANDARD OF REVIEW
A. In General
The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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.28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Ultimately, “[t]he statute's design is to ‘further the principles of comity, finality, and federalism.'” Panetti v. Quarterman, 551 U.S. 930, 945 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] . . . demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 (citations and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, (2011); Williams v. Taylor, 529 U.S. 362 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “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 fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103) (alterations in original).
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520 (1982). As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518 (internal citations omitted). This upholds the doctrine of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)).
Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and finding the justices' opportunity to read a lower court decision addressing the federal claims insufficient to support fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)).
In Arizona, however, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350 (1989).
C. Procedural Default
1. In General
“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows:
The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). “Together, exhaustion and procedural default promote federal-state comity.” Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022).
Thus, a prisoner's habeas petition may be precluded from federal review due to procedural default in two ways. First, where a “petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1 (citations omitted). In this circumstance, the federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in original). Second, where the petitioner presented his claims to the state court, which denied relief based “on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 728. Federal courts are prohibited from review in such cases because they have “no power to review a state law determination that is sufficient to support the judgment, [because] resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Id. This is true whether the state law basis is substantive or procedural. Id. (citations omitted).
In Arizona, a petitioner's claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial or on appeal or in any previous collateral proceeding[.]” Ariz. R. Crim. P. 32.2(a)(3) (2022). If an asserted claim “raises a violation of a constitutional right that can only be waived knowingly, voluntarily and personally by the defendant[,]” such claim is not automatically precluded. Id. Neither Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622.
2. Overcoming a Procedural Bar
Where a habeas petitioner's claims have been procedurally defaulted, a petitioner must show cause and actual prejudice to overcome the bar on federal review. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can 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); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”). Actual prejudice requires a habeas petitioner to “show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id. at 494-96.
The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct ‘a fundamental miscarriage of justice.'” Coleman v. Thompson, 501 U.S. 722 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrara v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404. Further, to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). ...
III. STATUTE OF LIMITATIONS
As a threshold matter, the Court must consider whether Petitioner's petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondents do not dispute the timeliness of McKerlie's petition, and the Court has independently reviewed the records and finds that his original petition (Doc. 1) is timely pursuant to 28 U.S.C. § 2244(d)(1)(A).
IV. ANALYSIS
Respondents assert that “[a]ll Grounds raised in the habeas petition are technically exhausted but procedurally defaulted.” Answer (Doc. 24) at 11. Petitioner concedes that “the issues [he] ha[s] raised have evolved along with [his] understanding of the law.” Reply (Doc. 30) at 2. Petitioner urges that his “good faith effort to seek the correct issues as they progress through the courts” warrants this Court's review of his habeas petition. Id. “[T]o allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule.” Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022) (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)). “Thus, federal courts must apply an important ‘corollary' to the exhaustion requirement: the doctrine of procedural default.” Id. (emphasis added) (quotations and citations omitted). As discussed below, the Court agrees with Respondents, and finds Petitioner's claims procedurally defaulted.
A. Ground One: First Amendment
Petitioner asserts that “[t]he pictures in this case are protected expression under the First Amendment[.]” Amended Petition (Doc. 15) at 8.
1. Fair Presentation
As noted in Section II.B., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). “[A] petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). In other words, “a petitioner must properly raise [a claim] on every level of direct review.” Id. (emphasis added) (citing Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992)); see also Baldwin, 541 U.S. at 29 (fair presentation requires a prisoner to raise his claims “in each appropriate state court”).
Petitioner did not raise this issue on direct appeal, and although he tangentially discussed the First Amendment in his pro se PCR petition to the trial court, it was only in relation to an ineffective assistance of trial counsel claim. See Answer (Doc. 24), Appellant's Opening Br., State v. McKerlie, No. 2 CA-CR 2015-0305 (Ariz.Ct.App. May 9, 2016) (Exh. “F”) (Doc. 24-1); Answer (Doc. 24), Petr.'s Pet. for PCR at 110-111, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Furthermore, Petitioner did not raise this claim to the Arizona Court of Appeals. See Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2). As such, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.
2. No Cause and Prejudice to Excuse Default
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “established] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.
B. Ground Two: Basis of Jury Verdict
Petitioner claims that “[t]here is a reasonable possibility the jury impermissibly based their verdict on their belief that I may have possessed these pictures for sexual stimulation, rather than on whether the photographer took them for the purpose of sexually stimulating the viewer.” Amended Petition (Doc. 15) at 13.
Petitioner did not raise this claim on direct review, nor did he assert it in his PCR petition. See Answer (Doc. 24), Appellant's Opening Br., State v. McKerlie, No. 2 CA-CR 2015-0305 (Ariz.Ct.App. May 9, 2016) (Exh. “F”) (Doc. 24-1); Answer (Doc. 24), Petr.'s Pet. for PCR at 110-111, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). On appeal, Petitioner made this argument in the context of asserting that SA Campbell's testimony was insufficient to sustain his conviction. Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR at 21-24, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2). The appellate court deemed this claim waived because it could have been raised on appeal. Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2019-0042-PR, Mem. Decision at 8-9 (Ariz.Ct.App. June 6, 2019) (Exh. “K”) (Doc. 24-2).
As discussed in Section IV.A., supra, Petitioner did not properly raise this claim at every level of review. Furthermore, the Arizona procedural rule is an independent and adequate state law ground precluding federal habeas review. Stewart v. Smith, 536 U.S. 856, 860 (recognizing independence of Rule 32 procedural determinations); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting argument that application of Arizona procedural rules “was so unpredictable and irregular that it does not provide an adequate ground for disposal of [petitioner's] claims.”). Here, the appellate court was explicit in its reliance on the state procedural bar rule. Harris v. Reed, 489 U.S. 255, 264 (1989). Neither has Petitioner met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Nor has Petitioner “established] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.
C. Ground Three: Due Process and Fair Trial Violation Based Upon Photographer's Intention
Petitioner asserts that he was denied his due process and fair trial rights, because “[a]lthough the Arizona Court of Appeals said in it[]s ruling . . . [that] the State was required to prove beyond a reasonable doubt the photographer who took the[] 5 pictures did so for the purpose of sexual stimulation of the viewer[,] the court ignored the fact the State did not as much as make the allegation such was the case, much less prove it.” Amended Petition (Doc. 15) at 21.
Petitioner arguably raised this claim in his PCR petition and again to the appellate court. See Answer (Doc. 24), Petr.'s Pet. for PCR at 98-100, State v. McKerlie, No. CR-20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1); Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR at 21-24, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-1). Although the appellate court did not acknowledge the claim as a standalone due process claim, it did consider it within the context of an ineffective assistance of counsel claim. Answer (Doc. 24), State v. McKerlie, No. 2 CA-CR 2019-0042-PR, Mem. Decision at 9-10 (Ariz.Ct.App. June 6, 2019) (Exh. “K”) (Doc. 24-2).
The appellate court considered State v. Chandler, 244 Ariz. 336, 418 P.3d 1109 (Ariz.Ct.App. 2018), upon which Petitioner relied. Answer (Doc. 24), Exh. “K” at 910. The appellate court observed:
As McKerlie seems to recognize, his interpretation would mean that innocuous images of nude children in medical journals or family photographs would be converted to images of sexual exploitation of a minor if a person collected them for sexual stimulation. This does not comport with the intent of the statute, which is to protect children who are the ''subjects in the production of pornographic materials.” 1978 Ariz.
Sess. Laws, ch. 200, § 2; see State v. Gates, 182 Ariz. 459, 463 (App. 1994) (“[Defendant's intent cannot create a ‘lewd exhibition' out of otherwise innocent activity by children.”).
Because the state was not required to show that McKerlie intended to use the images for sexual stimulation, his claim that trial and appellate counsel were ineffective for failing to raise that and related arguments necessarily fails.
Answer (Doc. 24), Exh. “K” at 10 (emphasis added).
1. Procedural Default
Federal courts “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 v. Thompson, 501 U.S. 722, 728 (1991). This is true whether the state law basis is substantive or procedural. Id. (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72 (1977). “To be adequate, the state's legal grounds for its decision must be firmly established and consistently applied.” King v. LaMarque, 464 F.3d 963, 965 (9th Cir. 2006) (citing Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir.2003)).
“While it is true ‘that state courts will not be the final arbiters of important issues under the federal constitution; [it is equally true] that [the federal courts] will not encroach on the constitutional jurisdiction of the states.'” Bennett, 322 F.3d at 582 (quoting Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557 (1940)) (alterations in original). “We are bound by th[e] state court's construction of its own penal statute.” McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989) (citations omitted). Accordingly, federal courts must defer to a state court's statutory construction “unless [it] find[s] that [the] interpretation is untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.” Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1993) (quotations and citations omitted). The appellate court's construction of the criminal statute “is neither untenable nor a subterfuge.” Id. Furthermore, “[i]t is a settled principle of statutory construction that a statute need not be given its literal meaning if doing so renders an absurd result which the legislature did not intend.” Id. at 708 (citations omitted). The appellate court noted that Petitioner's interpretation “does not comport with the intent of the statute[.]” Answer (Doc. 24), Exh. “K” at 10 (citing 1978 Ariz. Sess. Laws, ch. 200, § 2; then citing State v. Gates, 182 Ariz. 459, 463 (Ct. App. 1994)).
Additionally, “[i]t is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed.” Rose v. Locke, 423 U.S. 48, 49 (1975) (quotations and citations omitted). “All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Id., at 50 (citations omitted). Petitioner was on notice regarding the conduct which was forbidden. As such, there was no Due Process violation. Furthermore, “[t]his 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 appellate court's construction of the Arizona penal statute is an independent and adequate state ground, and this Court is prohibited from review. See id. at 730.
2. Cause and Prejudice
As discussed in Section IV.A., supra, Petitioner did not meet his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Nor has Petitioner “established] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.
D. Ground Four: Ineffective Assistance of Counsel
Petitioner asserts that his “attorney, Mr. Skitzki, of the Pima County Public Defender [sic] Office, provided ineffective assistance of counsel by not ensuring my right to Due Process and a Fair Trial and that this was the result of a lack of knowledge by Mr. Skitzki's part of essential points of law which were essential to my case, and that lack of knowledge was due to ineptitude, lack of experience, an/or lack of investigation, and I was unfairly prejudiced by his actions.” Amended Petition (Doc. 15-1) at 5.
1. Fair Presentation
As noted in Section IV.A., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). “As a general matter, each ‘unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”).
In his Rule 32 petition, Petitioner asserted several grounds upon which he alleged trial counsel was ineffective. First, he claimed that defense counsel's failure to address the intent requirement was ineffective assistance. Answer (Doc. 24), Petr.'s Pet. for PCR at 100-101, State v. McKerlie, No. CR 20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1). Next, Petitioner alleged that his trial, appellate, and PCR counsel all failed to recognize that the State's failure to prove Petitioner possessed the pictures with the intent of being sexually stimulated, and counsel's alleged failure constituted ineffective assistance. Id., Exh. “I” at 107-109. Third, Petitioner alleged that trial counsel was ineffective because he failed to object to the pictures meeting the definition of “exploitive exhibition.” Id., Exh. “I” at 109-111. Fourth, Petitioner asserted that trial counsel was ineffective because he failed to challenge whether the pictures depicted an actual child. Id., Exh. “I” at 112-13. Petitioner also asserted that “[a]ppellate counsel should have . . . moved for vacating the sentence because the trial judge did not give specific instructions to the jury that the state was required to prove beyond a reasonable doubt that the images were of an actual child.” Id., Exh. “I” at 114. Fifth, Petitioner asserted that both trial and appellate counsel were ineffective because of their alleged failure to challenge that the victim was a minor. Answer (Doc. 24), Petr.'s Pet. for PCR at 114-16, State v. McKerlie, No. CR 20141915-001 (Pima Cnty. Super. Ct. Sept. 7, 2018) (Exh. “I”) (Doc. 24-1).
On appeal of his PCR petition, Petitioner asserted that the trial court abused its discretion by failing to find his trial counsel ineffective for allegedly failing 1) to challenge the validity of the indictment; and 2) to provide a meaningful defense. Answer (Doc. 24), Appeal from Pima Cnty. Super. Ct. Denying Pet. for PCR at 25, State v. McKerlie, No. 2 CA-CR 2019-0042-PR (Ariz.Ct.App. Mar. 7, 2019) (Exh. “L”) (Doc. 24-2). Petitioner also argued that the trial court abused its discretion in determining that appellate counsel's assistance was ineffective because appellate counsel allegedly did not seek to have the photographs unsealed and therefore, failed to investigate the evidence. Id., Exh. “L” at 27.
In the instant habeas, Petitioner asserts trial counsel's ineffectiveness was demonstrated in several ways, including: 1) his opening statement, closing statement, and Rule 207 motion did not focus on the intent of the photographer, only on the sexual stimulation of the viewer; 2) he did not ask for a jury instruction which focused on the photographer's intent, and therefore the jury instructions were based on an improper legal ground; 3) he failed to challenge the jury instruction regarding the depiction of an actual child under the age of fifteen (15); and 4) he failed to challenge the indictment. Amended Petition (Doc. 15-1) at 5-11. As discussed in Section IV.A., supra, Petitioner did not properly raise these claims at every level of review, if at all. As such, the Court finds “[Petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1 (citations omitted); Ariz. R. Crim. P. 32.2, 33.2 (2022). Accordingly, the Court finds Petitioner's Ground Four is procedurally defaulted.
2. No Cause and Prejudice to Excuse Default
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “established] by clear and convincing evidence that but for the constitutional error, no reasonable factfinderwould have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). The Court finds Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748 (citations and quotations omitted). Accordingly, Petitioner's claim four is denied.
Arizona Rules of Criminal Procedure.
V. CONCLUSION
Based upon the foregoing, the Court finds that Petitioner Michael William McKerlie's habeas claims are procedurally defaulted and recommends that his Amended Petition (Doc. 15) be dismissed.
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DISMISSING Petitioner's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 15).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-20-0511-TUC-SHR.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.