Stedcke v. Shinn

Full title: William R. Stedcke, Petitioner, v. David Shinn, et al. Respondents.

Court: United States District Court, District of Arizona

Date published: Mar 31, 2022

CV-20-0346-TUC-RCC (BGM) (D. Ariz. Mar. 31, 2022)

Opinion

CV-20-0346-TUC-RCC (BGM)

03-31-2022

William R. Stedcke, Petitioner, v. David Shinn, et al. Respondents.

Honorable Bruce G. Macdonald United States Magistrate Judge

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Petitioner William R. Stedcke's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 17), and Petitioner replied (Doc. 34). The Petition (Doc. 1) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,¹ this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). .

1 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 Petitioner's Arizona Presentence Report stated the facts² as follows:

2 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, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). In Arizona, the factual basis for a guilty plea “may be ascertained from the record including presentence reports, preliminary hearing reports, admissions of the defendant, and from other sources.” State v. Varela, 120 Ariz. 596, 598, 587 P.2d 1173, 1175 (Ariz. 1978).

CR-20163933: On March 15, 2016, Tucson Police Department detectives conducted an undercover operation to locate and identity [sic] individuals interested in sexual relations with children. The detectives placed an ad on Craigslist in Sierra Vista, Arizona. The ad was placed in the casual encounters section of the site and was titled, “Taboo?”

After the ad was placed, detectives received numerous responses. On May 5, 2016, at 2:46 a.m., a response to the ad was received from [Stedcke] which read, “Do you do more than just talk about it?”

On July 5, 2016, detectives responded, “maybe,” to which [Stedcke] reported, “Please elaborate.”

On July 27, 2015, a detective responded stating he did not wish to discuss over email and [Stedcke] sent his cell phone number indicating he wished to continue the conversation and possible [sic] meet if an agreement could be reached.

On July 30, 2016, a detective contacted [Stedcke] and a conversation ensued.

The detective asked [Stedcke] what his taboo was, and he stated he liked younger women and threesomes. When asked how young, [Stedcke] stated he was open. The detectives told him he had a 12-year-old girl and [Stedcke] said, “Awesome.”

Between August 1 and August 23, 2016, the conversation continued. On August 23, 2016, the parties agreed to meet at a park located in the 4500 block of North 1st Avenue. Upon [Stedcke's] arrival, he was detained. During a post Miranda interview with [Stedcke], he admitted he had been talking with “Paul” about having sex with his 12-year-old daughter but had no intention of following through.

CR-20165348: On August 24, 2016, Tucson Police Department officers responded to [Stedcke's] residence regarding a burglary. When they arrived, they found a male [named G.R.] in [Stedcke's] apartment, but when they contacted [Stedcke] at the Pima County Jail, [Stedcke] indicated [G.R.] had no right to be there.

[G.R.] was arrested, and during a search of his person a thumb drive was found in his possession. [G.R.] stated the thumb drive had been given to him by [Stedcke] for safekeeping. A forensic review of the thumb drive revealed images containing child sex abuse. The images depicted prepubescent boys and girls between the ages of 5 and 14. The images included child erotica, bestiality, acts of masturbation, children performing oral sex on adults, digital, anal and penile penetration.

Answer (Doc. 17), State v. Stedcke, Nos. CR-20163933 & CR-20165348-001, Stedcke Presentence Rpt. (Pima Cnty. Super. Ct. Feb. 12, 2018) (Exh. “A”) (Doc. 17-1) at 7.³

3 Page citations refer to the CM/ECF page number for ease of reference.

On September 6, 2016, a Tucson Police Department Detective from the Internet Crimes Against Children's section testified before the grand jury regarding Petitioner's August 23, 2016, arrest. Petition (Doc. 1), State v. Stedcke, No. CR20163933, Grand Jury Tr. (Pima Cnty. Super. Ct. Sept. 6, 2016) (Exh. “D”) (Doc. 1-5). The detective testified:

Mr. Stedcke was interviewed and post Miranda he admitted that he sometime looked at - sometimes looked at images of younger girls, although he denied that any of these images were on his cellphone. He indicated that he often masturbates to the thought of getting together with younger people and often reached out to younger people, but he denied that he'd ever do anything with a younger person.

When asked if he ever masturbated to images of young girls, he indicated that he only uses them for stimulation and instead masturbates to the thought of getting together with younger girls. When asked about ages of persons in the photos he had looked at, he said he had seen images of children as young as infants, but he wasn't into that. When asked what he most like to look at, he said he'd like to look at images of females age 14 and up.

Id. at 9-10.

On December 5, 2016, at a second grand jury hearing, the detective testified about the images found on the thumb drive and Petitioner's computer as follows:

[G.R.] provided officers with a San Disk Cruzer thumb drive that he said was given to him by Stedcke on August 11, 2016. He said that Stedcke told him to hold onto the drive, but didn't give him a reason. He said he never looked at what was on the thumb drive, and never plugged it into his computer for fear that the computer would be infected with a virus. He admitted that he watches pornography on his computer but he doesn't view pornography involving children.

The thumb drive was placed into evidence, and in October of 2016, I obtained a search warrant to view the contents of that drive.

Upon doing this, I located hundreds of images depicting prepubescent children engaged in sex acts and exploitative exhibition of their genitals. Images were all categorized in different folders. A forensic preview of Mr. Stedcke's computer revealed that numerous devices had previously been connected to his computer. The computer registry showed that one of those devices was a San Disk Cruzer USB device that was last attached to the computer on August 13, 2016, at 9:13 in the evening, and the serial number of that device was noted as 2005173923078C, as in Charges, 01437B, as in boy. And it was mounted to the computer - or I'm sorry - when it was mounted to the computer, it was mounted as drive letter G.

A forensic preview analysis of the thumb drive given to officers by Reyes revealed that it was the same model and exact same serial number as the drive that was attached to Stedcke's computer on 8/13/2016 at 9:13 in the evening. The forensic preview analysis also revealed that a San Disk Cruzer had previously been mounted as drive letter G in Stedcke's computer.

A preview analysis of Stedcke's actual computer using a forensic software tool revealed numerous files depicting child erotica in the Windows thumbnail cache. The Windows thumbnail cache is a hidden section of Windows that is used to store thumbnail images for Windows Explorer Thumbnail View. The purpose of this is to speed up the display of images, as the smaller images don't need to be recalculated every time the user views the folder.

The images I located depicted various female children who appeared to be prepubescent and who were wearing lingerie and underwear. I also found one image that depicted child sexual abuse in this area of the computer.

Count 1 relates to that image on Stedcke's computer in the thumbnail cache. File name is 1ald7d2298719bfb.jpg. This is an image file that depicts a prepubescent female child who is of Asian decent [sic], and she is seen lying nude on a bed with her legs spread apart and her genitals exposed. She appears to be between 11 and 14 years of age.

The scan of Mr. Stedcke's computer located approximately 735 hits on the

key work “teen.” A large number of these hits were related to images downloaded to the G drive in a folder named “pix.”

Upon analyzing contents of the thumb drive given to officers by [G.R.], the last time any files were added to the drive was on August 13, 2016, the same date that it was last mounted on Mr. Stedcke's computer. The last file added to the drive was the file related to Count 1 of this indictment.

Upon analyzing the actual thumb drive further, a folder was located named MISC, and in this folder I located three additional sub-folders in deleted space. The names of these folders were Articles of Organization, Tax Lien Investing, and Penny Stocks. When the original warrant was served at Mr. Williams [sic] Stedcke's home to obtain his computer, documents related to penny stocks were seen in his home, and information regarding penny stocks were also found in his computer.

Petition (Doc. 1), State v. Stedcke, No. CR20165348, Grand Jury Tr. (Pima Cnty. Super. Ct. Dec. 5, 2016) (Exh. “E”) (Doc. 1-6) at 5-8.

The State asserted that it performed a forensic analysis of G.R.'s computer and “did not locate any files related to child pornography, which corroborated his statement about [Stedcke] giving him the thumb drive[;] [h]owever, it was noted that the computers [sic] operating system had been installed more than a month after the investigation date, which may have removed possible artifacts related to the USB drive.” Answer (Doc. 17), State's Response to Def.'s Pro-Se Pet. for Post-Conviction Relief at 100, State v. Arizona, Nos. CR20165348-001 & CR20163933-001 (Pima Cnty. Super. Ct. July 19, 2019 (Exh. “M”) (Doc. 17-1).

On September 6, 2016, Petitioner was indicted on one (1) count of luring a minor for sexual exploitation in violation of A.R.S. §§ 13-3554(A) & (C), 13-705(E) and one (1) count of sexual conduct with a minor in the second degree in violation of A.R.S. §§ 131405, 13-705(O). See Answer (Doc. 17), State v. Stedcke, No. CR20163933-001, Indictment (Pima Cnty. Super. Ct. Sept. 6, 2016) (Exh. “B”) (Doc. 17-1). On December 5, 2016, a second case was filed and Petitioner was indicted on ten (10) counts of sexual exploitation of a minor under fifteen in violation of A.R.S. § 13-3553(A)(2) and (C) based upon images of child pornography. See Answer (Doc. 17), State v. Stedcke, No. CR20165348-001, Direct Indictment (Pima Cnty. Super. Ct. Dec. 5, 2016) (Exh. “C”) (Doc. 17-1).

B. Guilty Plea

On January 5, 2018, Petitioner pled guilty to one (1) count of sexual exploitation of a minor under fifteen; one (1) count of sexual exploitation of a minor under fifteen in the second degree; and one (1) count of luring a minor for sexual exploitation.⁴ Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Plea Agreement (Pima Cnty. Super. Ct. Jan. 5, 2018) (Exh. “D”) (Doc. 17-1). During the change of plea hearing, Petitioner agreed with the factual basis as follows:

4 Counts One and Two, involving sexual exploitation, are based upon images depicting children engaged in exploitive exhibition or other sexual conduct.

As to CR20165348, on or about August 13 of 2016 through the 23rd of 2016, Mr. Stedcke received contents that sexually exploited a minor child and he knowingly received those. Specifically found in file name 1A, 1D, 7D, 22, 98, 719, bfb.jpeg. Again, on or about the 13th of August 2016, Mr. Stedcke attempted to receive a picture of a child that was sexually exploitative in nature. That was file name AKR940T . . . [o]pen bracket 1, closed bracket.jpeg. These both happened in Pima County.

As to CR20163933, on or about July 30, 2016 through the 23rd of August 2016, Mr. Stedcke lured a minor under 15 years of age for sexual exploitation by offering or soliciting sexual conduct with another person. The other person in question was a police officer. Mr. Stedcke did not know it was a police officer. He thought he was speaking to a father and the father's child. This also happened in Pima County . . . [and] he believed the police officer was offering a minor.

Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, COP/Status Conf. Hr'g Tr. (Pima Cnty. Super. Ct. Jan. 5, 2018) (Exh. “BB”) (Doc. 17-2) at 128-29. Petitioner confirmed that he understood the charges that he was pleading guilty to, the potential sentences for those charges, potential fines and fees that he might be required to pay, the terms of the plea agreement, and the rights that he would be given up by taking the plea. Id. at 117-26. Petitioner also confirmed that no one threatened him to take the plea; no one promised him anything other than what was in the plea agreement; he was not on probation or parole at the time of the offense; his signature appeared on the agreement; he went through the agreement with his lawyer; and he understood that he was bound by the terms of the plea agreement. Id. at 120-21.

On February 12, 2018, Petitioner was sentenced. See Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Sentence of Imprisonment Hr'g Tr. (Pima Cnty. Super. Ct. Feb. 12, 2018) (Exh. “E”) (Doc. 17-1). The State sought the imposition of the maximum aggravated sentence for Count One; no less than the presumptive sentence for Count Two; and probation for the luring count, with all sentences to run consecutively. Id. at 31-34. Defense counsel sought a sentence of fifteen (15) years with “two current probation tails, one for lifetime.” Id. at 34. Defense counsel opined that he did not “believe there [we]re any aggravating factors above and beyond just the possession of child pornography” and observed that they did not “actually know how many images Mr. Stedcke had on his computer[,] [t]hat is the reason for the plea.” Id. at 36. Defense counsel described that:

Mr. Stedcke was having conversation with at least two different undercover officers over the course of a couple of years. When he was arrested, when he went to go meet with the undercover officer posing as a father pimping out his daughter, he was arrested. A short time later, his house was burglarized, his apartment was burglarized and the individual who burglarized the apartment then sometime later gave the police a thumb drive with the images on it. It is that thumb drive that had all of the pornographic images. That individual pled guilty to a burglary charge. When his computer was forensically looked at, his entire hard drive had been erased. Mr. Stedcke's computer was also looked at and they were able to match up three of the images on Mr. Stedcke's computer with three of the images on the thumb drive.

Id. In case number CR20165348, the court sentenced Petitioner to a presumptive term of seventeen (17) years in the Department of Corrections on Count One and lifetime probation on Count Two. Answer (Doc. 17), Exh. “E” (Doc. 17-1) at 39-40. In case number CR20163933, the luring count, the court sentenced Petitioner to a presumptive term of three (3) and one-half years to be served consecutively with the sentence from the 5348 case. Id. at 40.

C. Post-Conviction Relief Proceeding

On May 10, 2018, Petitioner filed a pro per Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 17), Petr.'s Not. of PCR, State v. Stedcke, Nos. CR2013933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 10, 2018) (Exh. “F”) (Doc. 17-1). On May 15, 2018, Petitioner's counsel filed an individual Notice of PCR in each case. Answer (Doc. 17), Petr.'s Not. of PCR, State v. Stedcke, No. CR20165348-001 (Pima Cnty. Super. Ct. May 15, 2018) (Exh. “G”) (Doc. 17-1); Answer (Doc. 17), Petr.'s Not. of PCR, State v. Stedcke, No. CR20163933-001 (Pima Cnty. Super. Ct. May 15, 2018) (Exh. “H”) (Doc. 17-1). On May 16, 2018, The Rule 32⁵ court assigned counsel and outlined a briefing schedule for filing of the PCR petition. Answer (Doc. 17), State v. Stedcke, Nos. CR2013933-001 & CR20165348-001, Notice (Pima Cnty. Super. Ct. May 16, 2018) (Exh. “I”) (Doc. 17-1). On July 24, 2018, PCR counsel filed a notice pursuant to Montgomery v. Sheldon (I), ⁶ in which counsel stated that there were no viable issues appropriate for Rule 32 relief.⁷ See Answer (Doc. 17), Pet.'s Not. of Completion Pursuant to Rule 32 & Mot. for Ext. of Time for Pro Se Pet.; Mot. to Withdraw, State v. Stedcke, CR2013933-001 & CR20165348-001 (Pima Cnty. Super. Ct. July 24, 2018) (Exh. “J”) (Doc. 17-1).

5 Arizona adopted substantial changes to the procedural rules governing its PostConviction Relief procedures, effective January 1, 2020. See Ariz. Sup. Ct. Order No. R-19-0012. Broadly, the substance of the former Rule 32, Arizona Rules of Criminal Procedure, was divided between the new Rule 32 for defendants sentenced following a trial or a contested probation violation hearing and the new Rule 33 for defendants who pled guilty or no contest, admitted a probation violation, or who had an automatic probation violation. See id. The new Rule 32 and Rule 33 apply to “all actions filed on or after January 1, 2020” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies. Because Petitioner's PCR proceedings occurred prior to implementation of the new scheme and pursuant to the former Rule 32, the Court will refer to the trial court who presided over the proceedings as the “Rule 32 court.”

6 Montgomery v. Sheldon (I), 181 Ariz. 256, 889 P.2d 614 (1995).

7 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).

1. Pro se PCR Petition

On May 6, 2019, Petitioner signed his pro se Petition for PCR. See Answer (Doc. 17), Petr.'s Pet. for PCR, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 13, 2019) (Exh. “K”) (Doc. 17-1). Petitioner asserted that he “was denied his 6th Amendment right to effective assistance of counsel” based upon (1) counsel's alleged failure to investigate, including conducting a reasonable investigation before recommending a guilty plea, interviewing witnesses, providing Petitioner with the forensic report for his computer and the thumb drive, and failing to file a motion to dismiss the luring count because “the statute the petitioner was charged [with] . . . requires the defendant to either lure a child for sexual exploitation or an officer posing as a child”; (2) counsel's alleged withholding of information or providing Petitioner with false information when advising him to accept the plea, including that “[t]he police found ‘three' thumbnail images on the petitioners [sic] computer[,] [but] [t]he police reports it was only ‘one[,]'” and “the police obtained [G.R's] computer and the drive had been erased” but G.R. “had fled and the warrant was never served”; and (3) counsel's allegedly improper motion to join the two (2) indictments without consultation “so he could coerce the petitioner to sign the plea instead of proceeding to trial[.]” Id. at 67, 72-73, 77, 79-81.

The State responded and Petitioner replied. See Answer (Doc. 17), Response to Def.'s Pro-Se Pet. for PCR, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. July 19, 2019) (Exh. “M”) (Doc. 17-1); Answer (Doc. 17), Petr.'s Reply to State's Response to Petr.'s PCR, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. Aug. 7, 2019) (Exh. “N”) (Doc. 17-2).

The Rule 32 court directed trial counsel to file an affidavit that addressed the claims made in Petitioner's affidavit. See Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Order (Pima Cnty. Super. Ct. Aug. 21, 2019) (Exh. “O”) (Doc. 17-2). Upon receipt, the Rule 32 court provided trial counsel's affidavit to Petitioner and allowed him additional time to supplement his PCR petition. See Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Notice (Pima Cnty. Super. Ct. Aug. 28, 2019) (Exh. “O”) (Doc. 17-2). On September 12, 2019, Petitioner filed a supplemental brief addressing trial counsel's affidavit. See Answer (Doc. 17), Petr.'s Suppl. to Mr. Kamm's Stmt. of Alleged Facts, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. Sept. 12, 2019) (Exh. “Q”) (Doc. 17-2).

2. Rule 32 Court Order

On October 3, 2019, the Rule 32 court issued its order dismissing Petitioner's PCR petition. Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Under Advisement Ruling-In Chambers Under Advisement Ruling Re Def.'s Pet. for PCR (Pima Cnty. Super. Ct. Oct. 3, 2019) (Exh. “R”) (Doc. 17-2). The Rule 32 court delineated the rule for a finding of ineffective assistance of counsel that requires “a defendant show: 1) trial counsel performed deficiently under prevailing professional norms; and 2) counsel's deficiency prejudiced the defendant.” Id. at 38 (citing State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (Ariz. 1985) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984))). The Rule 32 court reviewed both case files, Petitioner's affidavit, trial counsel's affidavit, the plea agreement, the factual basis for the plea, and the plea colloquy. Answer (Doc. 17), Exh. “R” at 37-42. The Rule 32 court concluded “that the defendant ha[d] failed to present a colorable claim of ineffective assistance of counsel.” Id. at 42. The court found that “[t]he criticisms included in defendant's affidavit are soundly rebutted not only by the record and Mr. Kamm's affidavit but also are contrary to defendant's statements and actions at the plea hearing.” Id. As such, the Rule 32 court held “that trial counsel's performance was well within the prevailing professional norms when: (1) conducting the investigation in this case, (2) posturing the case via a conditional joinder to facilitate plea negotiations and mitigate sentencing exposure and (3) foregoing a constitutional claim against the Luring charge to again mitigate sentencing exposure.” Id. The Rule 32 court concluded that “Defendant ha[d] failed to present a colorable claim and, as a consequence, an evidentiary hearing is not warranted.” Id.

3. PCR Motion for Rehearing

On October 21, 2019, Petitioner moved for rehearing, seeking review of his claim regarding trial counsel's alleged failure “to file the proper motions to dismiss because count 2 of the first indictment was double jeopardy” and because the pictures contained in counts 2-10 of the second indictment were allegedly “never opened from the petitioners [sic] computer[.]” Answer (Doc. 17), Petr.'s Mot. for Rehr'g at 45, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. Oct. 21, 2019) (Exh. “S”) (Doc. 17-2). Petitioner also urged that he was entitled to new counsel pursuant to Anders⁸ based upon his belief that the court seeking a factual affidavit from trial counsel was an acknowledgement that his claims had merit. Id. at 46-47.

8 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).

The Rule 32 court construed Petitioner's motion as one for reconsideration and summarily denied it. Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Ruling-In Chambers Ruling Re Def.'s Mot. for Rehr'g (Pima Cnty. Super. Ct. Oct. 25, 2019) (Exh. “T”) (Doc. 17-2).

4. PCR Petition for Review

On November 20, 2019,⁹ Petitioner filed his Petition for Review with the Arizona Court of Appeals. Answer (Doc. 17), Petr.'s Pet. for Review, State v. Stedcke, No. 2CA-CR 19-0282-PR (Ariz.Ct.App. Nov. 25, 2019) (Exh. “U”) (Doc. 17-2). First, Petitioner alleged that he was denied his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due process because (a) “PCR Counsel filed a no colorable claim brief when meritorious issues existed” and (b) “the PCR Court failed to follow clearly established federal law by failing to appoint new counsel to review and vigorously argue those meritorious issues” and conduct an evidentiary hearing. Id. at 53 (citing Ariz. R. Crim. P. 32.8(a); then citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967)). In his remaining four (4) counts, Petitioner asserted that he was denied his Sixth Amendment right to effective assistance of counsel because defense counsel allegedly (1) “failed to investigate and file the proper motions to dismiss on the counts where no evidence exists consistent with due process to obtain a conviction”; (2) “failed to investigate the ICAC standards and file the proper motion to dismiss due to the ICAC standards violations”; (3) improperly “submitted an ORAL motion to join the two indictments without first requesting the proper hearings pursuant to Rule 404(c)”; and (4) “failed to completely investigate all issues before advising the Petitioner to plead guilty to crimes he did not commit.” Id. at 53 (emphasis in original).

9 The petition was received by the Arizona Court of Appeals Clerk of Court on November 25, 2019.

On February 24, 2020, Petitioner filed a supplemental petition for review. Answer (Doc. 17), Petr.'s Suppl. of Pet. for Review and Mot. to Accept Suppl., State v. Stedcke, No. 2CA-CR 19-0282-PR (Ariz.Ct.App. Feb. 24, 2020) (Exh. “V”) (Doc. 17-2). Petitioner alleged that trial counsel did not file a notice of defenses and this failure “show[ed] Mr. Kamm's intent to refuse to investigate, file any motions, and Mr. Kamm had no intention to proceed to, or conduct a trial.” Id. at 88. Petitioner also alleged that the prosecutor made a false statement about the search of G.R.'s computer, asserting “nowhere within the record does this evidence exist.” Id. at 89.

The Arizona Court of Appeals granted Petitioner's motion to supplement. Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Order (Ariz.Ct.App. Feb. 25, 2020) (Exh. “W”) (Doc. 17-2). On May 26, 2020, the Arizona Court of Appeals granted review and denied relief. See Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Mem. Decision (Ariz.Ct.App. May 26, 2020) (Exh. “X”) (Doc. 17-2). The appellate court observed that it would “not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion.” Id. at 97 (citing State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). The appellate court found “Stedcke ha[d] not sustained his burden of establishing such abuse[.]” Id. at 97.

The appellate court reiterated the rule for claims of ineffective assistance of trial counsel stating, “‘To state a colorable claim of ineffective assistance of counsel,' Stedcke was required to ‘show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him].'” Id. at 98 (citing State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984))) (alterations in original). The court further noted that “[a] pleading defendant who claims ineffective assistance ‘may only attack the voluntary and intelligent character' of his plea.” Id. (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973); then citing State v. Quick, 177 Ariz. 314, 316 (App. 1993)). Regarding counsel's alleged failure to investigate G.R., the appellate court found that it could not “say there is a likelihood that additional evidence as to G.R.'s use of the thumb drive would have been found, nor has Stedcke shown that any such evidence would have changed the outcome of a trial, given the evidence of the photographs having been viewed on his computer.” Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Mem. Decision (Ariz.Ct.App. May 26, 2020) (Exh. “X”) (Doc. 17-2) at 99. Similarly, the appellate court held that “Stedcke d[id] not show how evidence of the ICAC standards would have changed the outcome at a trial, particularly in view of his own statements and admissions to officers.” Id. Regarding Petitioner's assertions that trial counsel should have filed motions to dismiss, the appellate court held “he ha[d] waived any such claim except insofar as it relates to the validity of his plea.” Id. at 99 (citations omitted). The appellate court noted that any motion filed urging that Petitioner's conduct in the luring case did not meet the requirements of A.R.S. § 13-3554 would have failed because the statute had been revised to eliminate the limitations relied on by Petitioner. Id. at 100. Finally, the appellate court rejected Petitioner's “claim that counsel should have filed a motion based on insufficient evidence that he had ‘possession and control' of the images on the thumb drive.” Id. The court found this decision was a strategic one and Petitioner failed to meet his burden to “overcome the presumption that counsel's decision was proper.” Id. (citing State v. Goswick, 142 Ariz. 582, 586 (1984); then citing State v. Beaty, 158 Ariz. 232, 250 (1988)).

On June 11, 2020, Petitioner filed a motion for reconsideration. See Answer (Doc. 17), Petr.'s Mot. to Reconsider, State v. Stedcke, No. 2CA-CR 19-0282-PR (Ariz.Ct.App. June 11, 2020) (Exh. “Y”) (Doc. 17-2). Petitioner urged that the courts relied on false evidence regarding the search of G.R.'s computer, which rendered his plea invalid. Id. at 102-103. On June 18, 2020, the Arizona Court of Appeals denied Petitioner's motion to reconsider. Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Order (Ariz.Ct.App. June 18, 2020) (Exh. “Z”) (Doc. 17-2). Petitioner did not file a petition for review in the Arizona Supreme Court, and on November 20, 2020, the Arizona Court of Appeals issued its mandate. Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Mandate (Ariz.Ct.App. Nov. 20, 2020) (Exh. “AA”) (Doc. 17-2).

D. The Instant Habeas Proceeding

On August 14, 2020, Petitioner filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner's Petition (Doc. 1) asserts five (5) grounds for relief. First, Petitioner asserts that he “was denied his 14th Amendment right to Due Process because he was coerced to plead guilty to crimes he did not commit[] (i.e.[,] Actual Innocence)[.]” Petition (Doc. 1) at 6 (citing Mabry v. Johnson, 467 U.S. 504 (1984); then citing Schlup v. Delo, 513 U.S. 298 (1995)). Second, Petitioner alleges that he “was denied his 14th Amendment right to Due Process and his 6th Amendment right to effective assistance [of counsel] because the prosecutor submitted false evidence (through counsel that is not in the record) to obtain a coerced plea and the Appellate Court upheld the conviction relying solely on the prosecutor's assertion the false evidence existed.” Id. at 12 (citations omitted). Third, Petitioner asserts that he “was denied his 6th Amendment right to effective assistance [of counsel] because counsel failed to [(a)] argue and file obvious pretrial motions to dismiss; [(b)] failed to conduct a proper investigation; [and (c)] provided false information and inadequate advice to coerce the Petitioner into pleading guilty to crimes he did not commit.” Id. at 16 (citations omitted). Fourth, Petitioner alleges that he “was denied his 6th Amendment right to effective assistance [of counsel] because counsel submitted an ORAL motion to join the two indictments without first requesting the proper mandated hearings pursuant to Rule 404(c)[.]” Id. at 21 (citations omitted) (emphasis in original). Finally, Petitioner asserts that he “was denied his 6th Amendment right to counsel because the PCR Court failed to appoint “NEW” counsel to vigorously argue issues of merit during the PCR proceedings.” Id. at 25 (citations omitted).

On December 17, 2020, Respondents filed their Answer (Doc. 17), and Petitioner replied (Doc. 34).

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, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (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, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 131 S.Ct. at 1398 (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, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (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, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (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, 127 S.Ct. at 1939; 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, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 131 S.Ct. at 786-87) (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, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (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, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (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, 102 S.Ct. at 1203 (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, 70 S.Ct. 587, 590, 94 L.Ed. 761 (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, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (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, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (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, 124 S.Ct. at 1349. “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, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (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, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 650 (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).

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, 111 S.Ct. at 2557 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, 111 S.Ct. at 2554. 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, on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3); see also Ariz. R. Crim. P. 33.2(a)(3). “If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently' waived the claim.” Id., 2002 cmt. Neither Rule 32.2, 33.2 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, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (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, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (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, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (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, 106 S.Ct. at 2648 (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., 106 S.Ct. at 2649.

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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (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, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (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, 113 S.Ct. at 862. 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

A. Timeliness

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 Stedcke's petition, and the Court has independently reviewed the records and finds that his petition (Doc. 1) is timely pursuant to 28 U.S.C. § 2244(d)(1)(A).

IV. ANALYSIS

A. Procedurally Defaulted Claims

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, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (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, 124 S.Ct. at 1349 (fair presentation requires a prisoner to raise his claims “in each appropriate state court”). Here, Petitioner failed to raise Grounds One and Two of his habeas claims to the Rule 32 court during his post-conviction proceedings.

1. Ground One

In Ground One, Petitioner asserts that he “was denied his 14th Amendment right to Due Process because he was coerced to plead guilty to crimes he did not commit[] (i.e.[,] Actual Innocence)[.]” Petition (Doc. 1) at 6 (citations omitted). In his pro se Rule 32 petition, Petitioner only made claims alleging a denial of “his 6th Amendment right to effective assistance of counsel[.]” See Answer (Doc. 17), Petr.'s Pet. for PCR, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 13, 2019) (Exh. “K”) (Doc. 17-1). Petitioner did not “fairly present” his Fourteenth Amendment due process claim to the Rule 32 court. See Baldwin, 541 U.S. at 31-33, 124 S.Ct. at 1351.

Furthermore, as discussed in Section II.C.2, supra, “‘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 v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). 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). Petitioner has not met this burden.

2. Ground Two

Ground Two asserts that Petitioner “was denied his 14th Amendment right to Due Process and his 6th Amendment right to effective assistance [of counsel] because the prosecutor submitted false evidence (through counsel that is not in the record) to obtain a coerced plea and the Appellate Court upheld the conviction relying solely on the prosecutor's assertion the false evidence existed.” Petition (Doc. 1) at 12 (citations omitted). In his pro se Rule 32 petition, Petitioner only made claims alleging a denial of “his 6th Amendment right to effective assistance of counsel[.]” See Answer (Doc. 17), Petr.'s Pet. for PCR, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 13, 2019) (Exh. “K”) (Doc. 17-1). Petitioner did not “fairly present” his Fourteenth Amendment due process claim or a claim of prosecutorial misconduct to the Rule 32 court.¹⁰ See Baldwin, 541 U.S. at 31-33, 124 S.Ct. at 1351.

10 The Court finds Petitioner's Ground Two Sixth Amendment ineffective assistance of counsel claim regarding his counsel's allegedly false statement about the analysis of G.R.'s computer is contained within Ground Three and will be addressed below.

3. Ground Five

Ground Five asserts that Petitioner “was denied his 6th Amendment right to counsel because the PCR Court failed to appoint “NEW” counsel to vigorously argue the issues of merit during the PCR proceedings.” Petition (Doc. 24) (citations omitted) (emphasis in original). Petitioner raised this issue to the Rule 32 court upon reconsideration. Answer (Doc. 17), Petr.'s Mot. for Rehr'g at 46-47, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 13, 2019) (Exh. “K”) (Doc. 17-1). Petitioner also raised it before the Arizona Court of Appeals. Answer (Doc. 17), Petr.'s Pet. for Review, State v. Stedcke, No. 2CA-CR 19-0282-PR (Ariz.Ct.App. Nov. 25, 2019) (Exh. “U”) (Doc. 17-2).

The appellate court observed that “a claim of ineffective assistance of Rule 33 counsel must be made in a second, timely proceeding, not in the instant proceeding.” Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Mem. Decision at 98 n.2 (Ariz.Ct.App. Nov. 25, 2019) (Exh. “X”) (Doc. 17-2) (citing Ariz. R. Crim. P. 33.16(c)(2)(B); then citing Osterkamp v. Browning, 226 Ariz. 485, ¶ 19 & n.5 (App. 2011)). The Arizona procedural rule is an independent and adequate state law ground precluding federal habeas review. Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 2581 (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.”). The appellate court was explicit in its reliance on the state procedural bar rule. Harris v. Reed, 489 U.S. 255, 264, 109 S.Ct. 1038, 1044, 103 L.Ed.2d 308 (1989). Additionally, the Rule 32 court need for additional factual information from trial counsel does not equate to Petitioner having a meritorious claim. As such, this Court is precluded from habeas review unless Petitioner can show cause and actual prejudice.

4. Default

“[P]etitioner 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, 111 S.Ct. at 2557 n.1 (citations omitted); Ariz. R. Crim. P. 32.2, 33.2 (2022). Accordingly, the Court finds all Petitioner's Grounds One, Two, and Five are procedurally defaulted.

5. 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, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (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, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (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 “establish[ed] 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). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Accordingly, Petitioner's claims one and two are denied.

B. Waived by Guilty Plea

“[A]fter a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief[.]” Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235 (1973) (considering availability of federal collateral relief to claim of an unconstitutionally selected indicting grand jury). “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). “The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence of such of an antecedent constitutional infirmity.” Tollett, 411 U.S. at 266, 93 S.Ct. at 1608. “If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases.'” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). The Supreme Court of the United States has explained:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

Tollett, 411 US. at 267, 93 S.Ct. at 1608. “That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.” McMann, 397 U.S. at 770, 90 S.Ct. at 1448.

1. Ground 3(a)

In Ground Three, Petitioner asserts that he “was denied his 6th Amendment right to effective assistance [of counsel] because counsel failed to argue and file obvious pretrial motions to dismiss. Petition (Doc. 1) at 16. In support of this argument, Petitioner urges that he “NEVER spoke to a child or an officer posing as a child[,] [t]herefore, it was ineffective assistance for counsel's failure [sic] to file a motion to dismiss [the luring charge] pursuant to the plain language of the statute.” Id. (emphasis in original). Petitioner further argues that “[t]he second count of this indictment accuses the Petitioner of sexual conduct with a minor . . . [and] you cannot commit count one with committing sexual conduct[,] [so] [t]herefore, it was ineffective assistance for counsel's failure [sic] to file a motion to dismiss count two of the indictment because it would be double jeopardy.” Id. Petitioner also asserts that counsel was ineffective for allegedly failing to file a motion to dismiss “count one of the second indictment because pursuant to the detective's own testimony and investigation the Petitioner is innocent of this crime” since G.R. “was in possession of the thumb drive, which contained the illegal images, on the day the detective testified the images were placed on the thumb drive.” Id. at 17. Petitioner further argues that counsel should have filed a motion to dismiss “counts 2-10 of the second indictment for judicial economy because the State could never prove the knowingly element needed to convict.” Id.

Petitioner's claim does not address how these alleged failures by trial counsel caused his plea to be unknowing, involuntary, or unintelligent. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). As such, the Court finds Petitioner's claims regarding counsel's alleged failure to file motions to dismiss are waived.

2. Ground 4

In Ground Four, Petitioner asserts that he was “denied his 6th Amendment right to effective assistance [of counsel] because counsel submitted an ORAL motion to join the two indictments without first requesting the proper mandated hearings pursuant to Rule 404(c).” Petition (Doc. 1) at 21 (emphasis in original). Petitioner argues that because counsel “orally [moved] to join the two indictments he gave up the right and opportunity to present evidence that would have shown the petitioner was never in possession of the illegal images located on the thumb drive; count 2 of the first indictment was double jeopardy, and count 1 of the first indictment was insufficient as a matter of law.” Id.

Petitioner's claim does not address how these alleged failures by trial counsel caused his plea to be unknowing, involuntary, or unintelligent. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). As such, the Court finds Petitioner's claim regarding counsel's alleged in orally moving for joinder of the indictments are waived.

V. MERITS ANALYSIS

A. Ineffective Assistance of Counsel

In Grounds 3(b) and 3(c), Petitioner alleges that he received ineffective assistance of counsel because counsel allegedly “failed to conduct a proper investigation; [and] provided false information and inadequate advice to coerce the Petitioner into pleading guilty to crimes he did not commit.” Petition (Doc. 1) at 16.

1. Legal Standards

For cases which have been fairly presented to the State court, the Supreme Court elucidated a two-part test for determining whether a defendant could prevail on a claim of ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must show that counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner must show that this performance prejudiced his defense. Id. Prejudice “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable.” Id. Ultimately, whether or not counsel's performance was effective hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth Amendment's guarantee of effective assistance is not meant to “improve the quality of legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original).

“The standards created by Strickland and § 2254(d) are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so[.]” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted). Judging counsel's performance must be made without the influence of hindsight. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. at 788) (alterations in original). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential standard to review the state court's ‘last reasoned decision.'” Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in 2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner also bears the burden of showing that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d).

2. Ground 3(b)-Investigation

Petitioner alleges that his trial counsel “failed to conduct a proper investigation[.]” Petition (Doc. 1) at 16. Petitioner raised this claim in his PCR petition. See Answer (Doc. 17), Petr.'s Pet. for PCR at 72-73, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 13, 2019) (Exh. “K”) (Doc. 17-1). Petitioner also presented this claim to the Arizona Court of Appeals. Answer (Doc. 17), Petr.'s Pet. for Review, State v. Stedcke, No. 2CA-CR 19-0282-PR (Ariz.Ct.App. Feb. 24, 2020) (Exh. “U”) (Doc. 17-2).

The appellate court reiterated the rule for claims of ineffective assistance of trial counsel stating, “‘To state a colorable claim of ineffective assistance of counsel,' Stedcke was required to ‘show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him].'” Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Mem. Decision (Ariz.Ct.App. May 26, 2020) (Exh. “X”) (Doc. 17-2) at 98 (citing State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984))) (alterations in original). The court further noted that “[a] pleading defendant who claims ineffective assistance ‘may only attack the voluntary and intelligent character' of his plea.” Answer (Doc. 17), Exh. “X” at 98 (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973); then citing State v. Quick, 177 Ariz. 314, 316 (App. 1993)).

Regarding counsel's alleged lack of investigation related to the exploitation charges, the appellate court observed that “[a] forensic search of Stedcke's computer established that the thumb drive had been attached to it and ‘numerous files depicting child erotica' were found in the Windows thumbnail cache.” Answer (Doc. 17), Exh. “X” at 98. Regarding counsel's alleged failure to investigate G.R., the appellate court found that it could not “say there is a likelihood that additional evidence as to G.R.'s use of the thumb drive would have been found, nor has Stedcke shown that any such evidence would have changed the outcome of a trial, given the evidence of the photographs having been viewed on his computer.” Id. at 99. Furthermore, the appellate court did not disturb the lower court's finding that “[t]he criticisms included in defendant's affidavit are soundly rebutted not only by the record and Mr. Kamm's affidavit but also are contrary to defendant's statements and actions at the plea hearing.” Answer (Doc. 17), State v. Stedcke, Nos. CR20163933-001 & CR20165348-001, Under Advisement Ruling-In Chambers Under Advisement Ruling Re Def.'s Pet. for PCR (Pima Cnty. Super. Ct. Oct. 3, 2019) (Exh. “R”) (Doc. 17-2) at 42. Regarding counsel's allegedly inadequate investigation of the luring case, the appellate court found that “again[,] Stedcke does not show how evidence of the ICAC standards would have changed the outcome at a trial, particularly in view of his own statements and admissions to officers.” Answer (Doc. 17), Exh. “X” at 99.

Petitioner cannot show that counsel's performance was deficient. The record does not support a finding that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original). “Where there are two permissible views of the evidence, a fact finder's choice between them cannot be clearly erroneous.” Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) (citing Amadeo v. Zant, 486 U.S. 214, 226, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988)). Petitioner has also failed to present any evidence to suggest that the Arizona courts' decisions as to his ineffective assistance claim regarding trial counsel's alleged failure to investigate is contrary to or an unreasonable application of clearly established Supreme Court law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly established Federal law or unreasonably determine the facts in light of the evidence presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson v. Ryan, 738 F.3d 976, 991 (9th Cir. 2013). Petitioner's ineffective assistance of counsel claim regarding the alleged failure to investigate is without merit. ...

2. Ground 3(c)-Inadequate advice

Petitioner alleges that his trial counsel “provided false information and inadequate advice to coerce the Petitioner into pleading guilty to crimes he did not commit.” Petition (Doc. 1) at 16. Petitioner raised this claim in his PCR petition. See Answer (Doc. 17), Petr.'s Pet. for PCR at 79-80, State v. Stedcke, Nos. CR20163933-001 & CR20165348-001 (Pima Cnty. Super. Ct. May 13, 2019) (Exh. “K”) (Doc. 17-1). Petitioner also presented this claim to the Arizona Court of Appeals. Answer (Doc. 17), Petr.'s Pet. for Review, State v. Stedcke, No. 2CA-CR 19-0282-PR (Ariz.Ct.App. Feb. 24, 2020) (Exh. “U”) (Doc. 17-2).

The appellate court “reject[ed] his claim that counsel should have filed a motion based on insufficient evidence that he had ‘possession and control' of the images on the thumb drive.” Answer (Doc. 17), State v. Stedcke, No. 2CA-CR 19-0282-PR, Mem. Decision (Ariz.Ct.App. May 26, 2020) (Exh. “X”) (Doc. 17-2) at 100. The appellate court found that “[t]he evidence here, data from the computer's thumbnail cache, showed Stedcke had viewed the photographs on his computer.” Id. The appellate court further found that “[t]he decision whether to challenge that evidence in a pretrial motion was a strategic one, and viewed in relation to the plea offer, we cannot say Stedcke has overcome the presumption that counsel's decision was proper.” Id. (citing State v. Goswick, 142 Ariz. 582, 586 (1984); then citing State v. Beaty, 158 Ariz. 232, 250 (1988)).

Petitioner cannot show that counsel's performance was deficient. The record does not support a finding that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original). “Where there are two permissible views of the evidence, a fact finder's choice between them cannot be clearly erroneous.” Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) (citing Amadeo v. Zant, 486 U.S. 214, 226, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988)). Petitioner has also failed to present any evidence to suggest that the Arizona courts' decisions as to his ineffective assistance claim regarding trial counsel's alleged inadequate advice is contrary to or an unreasonable application of clearly established Supreme Court law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly established Federal law or unreasonably determine the facts in light of the evidence presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson v. Ryan, 738 F.3d 976, 991 (9th Cir. 2013). Petitioner's ineffective assistance of counsel claim regarding allegedly inadequate advice is without merit.

V. CONCLUSION

Based upon the foregoing, the Court finds that Petitioner William R. Stedcke's habeas claims are procedurally defaulted without excuse or without merit and recommends that his Petition (Doc. 1) be denied.

VI. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1).

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-20-0346-TUC-RCC.

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.