Opinion
Civ. 20-00236-TUC-DCB-LCK
09-02-2021
Angel Pete Ruiz, Petitioner, v. Arizona Department of Corrections, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Petitioner Angel Pete Ruiz, presently incarcerated at the Arizona State Prison in Buckeye, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Under the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Before this Court are Petitioner's Petition (Doc. 1), Respondents' Answer (Doc. 18), and Petitioner's Reply (Doc. 21). The Magistrate Judge recommends that the District Court, after its independent review of the record, deny the Petition.
FACTUAL AND PROCEDURAL BACKGROUND
In the Superior Court of Pima County, Petitioner was convicted of two counts of kidnapping, two counts of aggravated assault with a deadly weapon, and one count each of aggravated robbery, attempted aggravated robbery, armed robbery, attempted armed robbery, burglary, and possession of marijuana for sale. (Doc. 18-1 at 5.) On January 20, 2015, he was sentenced to 47.25 years in prison. (Id. at 13-19.)
Petitioner filed a notice of appeal on the day he was sentenced. (Doc. 18, Ex. C.) There, he raised two arguments: (1) denial of his motion to suppress constituted reversible error; and (2) trial court's reversal of an initially granted motion for judgment of acquittal violated double jeopardy. (Doc. 9 at 37-48.) Construing the facts in the light most favorable to upholding the verdicts, the Arizona Court of Appeals summarized the facts underlying the crimes:
In November 2013, a homeland security agent, A.C., was conducting undercover surveillance at a truck stop, tracking a load of marijuana in a specific tractor-trailer. While A.C. watched, a sport utility vehicle (SUV) and a sedan circled the parking lot, stopping near the target tractor-trailer. Six to eight men got out of the vehicles, opened the trailer, and moved bales of marijuana from the trailer to the sedan. A.C. called for backup, but the vehicles sped away before it arrived.
¶ 3 A civilian, L.H., approached A.C. to share that he had just witnessed the incident. L.H. and A.C. were standing at the back of the open trailer when the SUV returned. Three people jumped out of the SUV, pointed guns at L.H. and A.C., and ordered them to get on the ground. One man, later identified as Anthony Ybave, pointed a gun at the back of L.H.'s head, patted him down, and removed an envelope containing about $380 from his pocket. Ybave then pointed his gun at A.C.'s head and patted him down. The men moved more marijuana to the SUV until sirens could be heard in the distance and A.C. told the suspects the police were coming.
¶ 4 Two of the men left in the SUV, but crashed a short distance away and fled on foot into the desert. While the search for suspects was ongoing, a truck driver told a detective that a man had approached him in the truck stop and asked for a ride. The detective entered the truck stop and found Ruiz, who matched the description given by the truck driver. Ruiz was breathing heavily, his hands were shaky, and he looked disheveled. The detective took him outside for a one-person “show-up, ” and L.H. immediately identified Ruiz as one of the three men from the SUV. Ruiz's DNA was found on a cellular telephone near the crash site; the telephone also contained photographs of Ruiz and text messages addressed to him.
(Doc. 18-1 at 4-5.) On April 27, 2016, the court of appeals rejected Petitioner's first argument. (Doc. 18-1 at 5-7.) However, his second argument prevailed, and the court of appeals vacated Petitioner's convictions for two of the charges (attempted aggravated robbery and attempted armed robbery). (Id. at 7-11.) The mandate issued on June 8, 2016, as Petitioner did not file a motion for reconsideration or a petition for review. (Doc. 18, Ex. D.)
Petitioner filed a Notice of Post-Conviction Relief (PCR) on May 24, 2016, followed by a pro per Petition on October 24, 2017. (Doc. 18, Exs. E, H, H2.) On February 13, 2018, the trial court dismissed the Petition. (Doc. 18, Ex. I.) Petitioner filed a petition for review with the Arizona Court of Appeals on May 12, 2018. (Doc. 9-2 at 2-11.) On September 19, 2018, the court of appeals granted review but denied relief. (Id. at 12-16.) Petitioner then filed a motion for reconsideration, which was denied. (Doc. 18, Ex. N.) Petitioner submitted a petition for review to the Arizona Supreme Court. (Doc. 9-2 at 19-29.) It was denied on May 28, 2019 (Doc. 18, Ex. O), and the Arizona Court of Appeals issued the mandate on July 30, 2019.
Respondents did not include the mandate in the record, but the Court reviewed the Arizona Court of Appeals docket at https://www.appeals2.az.gov/ODSPlus/caseInfolast. cfm?caseID=129344.
On June 1, 2020, Petitioner filed an unsigned petition for habeas corpus in this Court. (Doc. 1.) He then filed a signed Amended Petition on July 20, 2020, which raised the following two claims: (1) newly discovered evidence of recantation by a key witness; and (2) ineffective assistance of counsel (IAC) based on trial counsel's failure to subpoena the arresting officer and the victim for a pretrial motions hearing. (Doc. 9 at 5-8, 19, 21.)
DISCUSSION
Respondents argue the Petition is untimely. Although Respondents concede that Petitioner's claims are exhausted (Doc. 18 at 14-15), they contend both claims are without merit. The Court addresses timeliness before proceeding to the merits.
STATUTE OF LIMITATIONS AND TOLLING
Petitioner filed the Amended Petition after April 24, 1996. Therefore, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). Under the AEDPA, federal habeas corpus petitions filed by state prisoners are governed by a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the latest of:
(A) the date on which 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 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.Id.
In applying (d)(1)(A), the Court must determine when direct review of the conviction became final. Petitioner was sentenced on January 20, 2015. (Doc. 18-1, Ex. B.) The court of appeals rendered its decision, granting Petitioner limited relief, on April 27, 2016; Petitioner did not appeal this decision to the Arizona Supreme Court. (Doc. 18-1, Ex. A.) Because he did not appeal, the judgment became final when the time for seeking review expired, on June 1, 2016, 35 days after the decision from the court of appeals. See Hemmerle v. Arizona, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (assessing § 2244 finality under Arizona rules). Therefore, absent tolling, the statute of limitations began to run on June 2, 2016.
See Ariz. R. Crim. P. 31.21(b)(2) (a party must file a petition for review to the Arizona Supreme Court within 30 days after the Arizona Court of Appeals files its decision); Ariz. R. Crim. P. 1.3(a)(5) (allowing an additional five days for service by mail).
The one-year limit is tolled during any period when “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Because Petitioner filed his PCR Notice on May 24, 2016, prior to the appellate court's ruling, the limitations period was tolled immediately upon the conclusion of direct appeal. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004) (finding that tolling period begins with filing of notice pursuant to Arizona Rules of Criminal Procedure). An application for state post-conviction review remains pending “until the application has achieved final resolution through the State's post-conviction procedures.” See Hemmerle, 495 F.3d at 1077 (citing Carey v. Saffold, 536
U.S. 214, 219-20 (2002)). As stated, the tolling period is determined by reference to state procedure; this is a fundamentally different question than finality under § 2244(d)(1)(A), which relies on federal law. See White v. Klitzkie, 281 F.3d 920, 924 (9th Cir. 2002) (noting distinction and looking to state procedure to determine period when post-conviction proceeding was pending in state court); see also Clay v. United States, 537 U.S. 522, 531 (2003) (holding that “finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule.”)
The question is whether tolling ended when the supreme court denied review, as argued by Respondents, or when the appellate court subsequently issued the mandate. In Celaya v. Stewart, this Court held that an Arizona PCR proceeding remained pending until the mandate issued. 691 F.Supp.2d 1046, 1055 (D. Ariz. 2010), aff'd sub nom. Celaya v. Ryan, 497 Fed. App'x 744, 745 (9th Cir. 2012) (“Under Arizona law, [Petitioner's] post-conviction review (‘PCR') petition was ‘pending' until the Arizona Court of Appeals issued the mandate concluding its review of that petition . . . .”). However, the holding was limited to a situation where review was not sought in the supreme court. Cf. Baker v. Ryan, No. CV 12-0140-TUC, 2015 WL 997801, at *8 (D. Ariz. Mar. 6, 2015) (relying on Celaya to find date of mandate ended statutory tolling but stating, in dicta, “[h]ad petitioner sought review of that decision in the Arizona Supreme Court, his ‘pending' state post-conviction matter would have concluded on the date review was denied, not the date the state supreme court issued its mandate.”). Two other decisions of this Court, that discussed how long a PCR proceeding remains pending when review is sought at the state supreme court, reached conflicting conclusions. Compare Martinez v. Ryan, No. CV-15-00566-TUC, 2018 WL 3110045, at *3 n.3 (D. Ariz. June 25, 2018) (finding that, when review is sought in the Arizona Supreme Court, post-conviction relief is “resolved when the Arizona Supreme Court denie[s] review”) aff'd on other grounds, 777 Fed.Appx. 233 (9th Cir. 2019), with Washington v. Ryan, No. CV-13-01317-TUC, 2015 WL 274151, at *4 (D. Ariz. Jan 22, 2015) (holding that, when the Arizona Supreme Court denies review, the PCR proceeding remains pending until the court of appeals issues the mandate).
A review of Arizona caselaw and controlling rules reveals that the outcome should be the same whether or not a defendant seeks review at the Arizona Supreme Court. Post-conviction review does not conclude with denial of review because a mandate is a necessary part of the appeal process. The Arizona Court of Appeals is directed to issue a mandate when review is not sought in the supreme court and when review is sought in the supreme court and denied. Ariz. R. Crim. P. 31.22(b)(1) & (2) (if further review not sought, court of appeals “will issue the mandate when the time expires for filing the petition for review, ” and if review sought and denied, court of appeals “will issue the mandate 15 days after the clerk receives a Supreme Court order denying the petition for review”). This mandate-the “final order” of the appellate court-instructs a different court to “take further proceedings or to enter a certain disposition of a case.” Ariz. R. Crim. P. 31.22(a). Further, the appellate court retains jurisdiction of an appeal until the mandate issues. Ariz. R. Crim. P. 31.22(a). In Celaya, 691 F.Supp.2d at 1054-55, the Court cited Joel Erik Thompson, Ltd. v. Holder, 965 P.2d 82, 85, 192 Ariz. 348, 351 (Ct. App. 1998), as amended (July 22, 1998), which held that the appellate process terminates at the issuance of the mandate. Numerous other Arizona cases have noted that a case does not conclude at the court of appeals or supreme court until the mandate issues, See, e.g., Celaya, 691 F.Supp.2d at 1054, 1074-75 (collecting cases); State v. Ikirt, 770 P.2d 1159, 1162, 160 Ariz. 113, 116 (1989) (“[i]f this court denies the petition . . . the Court of Appeals issues the mandate to the trial court. . . . This procedure comports with the notion that the court which makes the binding decision should issue the mandate.”); Lewis v. Davison, No. 1 CA-CV 15-0857, 2016 WL 7209680, at *2 (Ariz.Ct.App. Dec. 13, 2016) (noting that the criminal case was not complete and remained pending before the Arizona Supreme Court because the mandate had not yet issued); In re 1992 Lexus SC400, No. 2 CA-CV 2014-0041, 2014 WL 7243975, at *1 (Ariz.Ct.App. Dec. 19, 2014) (finding “appellate proceeding does not terminate until a mandate issues” whether the dismissal is jurisdictional or on the merits).
Some decisions that concluded a PCR proceeding was no longer pending on the date the Arizona Supreme Court denied review relied upon the Hemmerle case. See, e.g.,
Martinez, 2018 WL 3110045, at *3. In Hemmerle, the court held that once the Arizona Supreme Court denied review nothing remained pending for purposes of tolling. 495 F.3d 1077. However, in that case, no mandate was issued. Id. The only action that occurred after the supreme court's denial of review was the court of appeals issuing a letter and returning the record to the trial court. Id. The Ninth Circuit clarified that the letter was not a mandate but a ministerial function, without a deadline for completion, pursuant to the criminal rules. Id. Because the court did not evaluate a mandate in Hemmerle, it does not address the question before this Court. Also distinguishable is White, 281 F.3d at 923 n.4, in which the court concluded that Guam did not have a rule extending the time for when a decision was final beyond the date of the decision. Therefore, a case was no longer pending at the date the supreme court issued its decision. In contrast, Arizona's rules require the appellate court to issue a mandate 15 days after the supreme court denies review. And, the Arizona courts have determined a case is not final until the mandate is issued.
In sum, it is the mandate, not the date of the supreme court's denial of review, that concludes the AEDPA tolling period. Because the date of the mandate controls, Petitioner's PCR proceeding was pending until the mandate's issuance on July 30, 2019. Accordingly, the one-year AEDPA statute of limitations began to run on July 31, 2019. Petitioner filed an unsigned petition for habeas corpus on June 1, 2020, and an Amended Petition on July 20, 2020. Because these dates fall within the one-year window, Petitioner's habeas claims are timely.
We do not reach the issue of which date to use because it is not dispositive here. Further, Respondents concluded that the earlier date of the initial petition, June 1, 2020, was the relevant date for purposes of the statute of limitations. (Doc. 18 at 8 & n.2.)
MERITS
The AEDPA created a “highly deferential standard for evaluating state-court rulings . . . demand[ing] that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication:
(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). The last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005).
The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule of law that was “clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 380 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the “clearly established Federal law, ” if any, that governs the sufficiency of the claim on habeas review. “Clearly established” federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).
The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is “contrary to” the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent “unreasonable, ” the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Schiro v. Landrigan, 550 U.S. 465, 473 (2007); Visciotti, 537 U.S. at 25. A state court's determination that a claim lacks merit precludes federal habeas relief so long as “‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at 473-74; Miller-El II, 545 U.S. at 240.
Claim 1
Petitioner alleges newly discovered evidence in the form of the victim's recantation of his identification of Petitioner. Newly discovered evidence is not cognizable in this Court because it does not allege a federal constitutional claim. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1990) (“[I]t is not province of a federal habeas court to reexamine state-court determinations on state-law questions.”). “Newly discovered evidence is a ground for federal habeas corpus relief only when it bears on the constitutionality of an applicant's conviction.” Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir. 1993) (citing Herrera v. Collins, 506 U.S. 390, 400 (1993)); see also Bowman v. Gammon, 85 F.3d 1339, 1342 (8th Cir. 1996) (“Claims of newly discovered evidence that relate only to the guilt or innocence of a state prisoner do not warrant federal habeas corpus relief. . . . To constitute a basis for relief, such claims must establish an independent constitutional violation.”) (citing Herrera, 506 U.S. at 400). Petitioner has not connected his claim of newly discovered evidence to a constitutional violation. Petitioner concedes as much, stating, “I understand that recantation does not have a [U]nited [S]tates stand[ard] . . . .” (Doc. 9 at 19.) Therefore, Claim 1 is not cognizable.
Claim 2
Petitioner alleges that trial counsel was ineffective in failing to subpoena (a) the arresting officer, and (b) the victim for pretrial motion testimony. (Doc. 9 at 21.) He contends that his pretrial motions would have been granted if his attorney had subpoenaed those two witnesses.
State Court Rulings
Although Petitioner fairly presented the IAC claims, the PCR court did not address them directly. However, the court found that his IAC allegations failed to satisfy the Strickland criteria. (Doc. 18-3 at 195.) And, that “the Defendant was represented by a seasoned, competent and diligent attorney at all stages of his case.” (Id.)
In ruling on the petition for review, the appellate court rejected the IAC claim because Petitioner failed to prove prejudice. (Doc. 9-2 at 15.) In particular, the court stated that “although [Petitioner] complains about counsel's conduct during several pretrial hearings, he has not demonstrated any likelihood the results of those hearings would have been different.” (Id.)
Standard
IAC claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness, and that the deficiency prejudiced the defense. Id. at 687-88. The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. Thus, to satisfy Strickland's first prong, deficient performance, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id.
A petitioner also must affirmatively prove prejudice. Id. at 693. To demonstrate prejudice, he “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Because an IAC claim must satisfy both prongs of Strickland, the reviewing court “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”).
Claim 2(a)
The pretrial hearing included Petitioner's motion to suppress his stop by Detective Hernandez, who was not present at the hearing. Petitioner argued in the motion that the arresting officer did not have reasonable suspicion to detain him. Petitioner argues, here, that the absence of the arresting officer at the hearing resulted in hearsay testimony, because a lead detective described the facts of the case. (Doc. 9 at 21.) The lead detective testified that an unnamed truck driver reported to Detective Hernandez that a suspicious individual asked him for a ride. (Doc. 18-3 at 100.) The driver gave a description of the person to Detective Hernandez, who used that information to locate and detain Petitioner. (Id.)
Trial counsel objected to the hearsay testimony on three separate occasions. (Doc. 18-3 at 95, 96, 100.) The judge overruled each objection, explaining that the testimony was appropriate for the purpose of the hearing. (Id. at 95.) That finding is supported by governing law, which provides that hearsay may be considered when addressing whether an officer had a sufficient basis to detain a person. See Draper v. United States, 358 U.S. 307, 311 (1959) (rejecting argument that hearsay may not be considered when assessing probable cause for arrest); State v. Pederson, 424 P.2d 810, 814, 102 Ariz. 60, 64, (1967) (“in a hearing to determine whether probable cause existed for an arrest, what the arresting officer has been told by another person is not excludable by raising the objection of hearsay.”); Ariz. R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules”). Counsel objected to the hearsay but, regardless, it was properly admitted at the pretrial hearing. Therefore, counsel was not deficient in failing to subpoena Detective Hernandez to avoid the use of hearsay.
Petitioner also argues that Detective Ruiz's pretrial hearing testimony was “completely different” than Detective Hernandez's trial testimony. (Doc. 9 at 21.) As an initial matter, the validity of the stop was litigated prior to trial and was not an issue to be decided by the jury. More importantly, Petitioner did not identify one difference between the pretrial and trial testimony of the officers. Nor did he identify any testimony that Detective Hernandez would have offered if he had testified at the pretrial motion hearing. Because he has not shown how testimony by Detective Hernandez would have changed the outcome of the pretrial ruling, he fails to establish prejudice. The state court's denial of this claim was not objectively unreasonable.
Claim 2(b)
Petitioner argues that the absence of the victim from the pretrial hearing prevented the judge from assessing his credibility and ability to provide an in-court identification. In support, Petitioner references a deposition at which he alleges the victim “clearly stated that he does not know or remember if [the defendant] was present at the crime.” (Doc. 9 at 21.) He concludes that, if this evidence had come out at the pretrial hearing, the judge would have precluded the victim from making an identification at trial.
The victim's deposition testimony is in stark contrast to Petitioner's allegation. The victim identified Petitioner as a participant in the crimes with 100% certainty. (Doc. 18-2 at 65, 68.) Further, at the pretrial hearing, Petitioner's attorney attacked the victim's credibility by discussing his alleged drug use, potential involvement with prostitutes, and inability to observe the crime. (Doc. 18-3 at 79-80.) The attorney suggested twice that the victim's testimony would be valuable at the pretrial hearing, but the judge stated, “I'm not going to be making a determination as to his credibility. That's for the jury to determine.” (Id. at 77-80.) Ultimately, the court concluded it would decide the motion to preclude an in-court identification by the victim based on audio, video, and photographs submitted to the court. (Id. at 85.)
Petitioner argues that if the victim had been subpoenaed for the pretrial hearing, he would have testified in conformance with his deposition testimony. Assuming that to be true, the victim would have identified Petitioner as a person that participated in the crime. That would not have undermined the judge's decision to allow an in-court identification. Therefore, the victim's absence did not prejudice Petitioner. Further, the judge stated that she would not consider credibility in deciding the motion to preclude an in-court identification. (Doc. 18-3 at 80.) Finally, although the victim was allowed to identify Petitioner at trial, counsel impeached the victim's credibility through cross-examination. (Docs. 18-2 at 106-19; 18-3 at 3-18; see also Doc. 18-3 at 194 (PCR court found that “[t]rial counsel spent considerable time cross-examining and impeaching” the victim's credibility).)
Based on these facts, the Court finds that subpoenaing the victim for pretrial motion testimony would not have changed the outcome of the pretrial hearing or trial. The state court's denial of this claim was not objectively unreasonable.
CONCLUSION AND RECOMMENDATION
The Petition is timely, and the claims are exhausted. However, Claim 1 is not cognizable, and Claims 2(a) and 2(b) are without merit. Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order DISMISSING the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-00236-TUC-DCB.