Opinion
CV 20-00687-PHX-SRB (MHB)
03-29-2021
Timothy Warren Stroble, Petitioner, v. David Shinn, et al., Respondents.
ORDER
TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT COURT:
Petitioner Timothy Warren Stroble, who is confined in the Arizona State Prison Complex-Tucson, filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 6). Respondents filed an Answer and Petitioner filed a reply. (Docs. 14, 18.)
BACKGROUND
Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR 2012-008428-001, of robbery and was sentenced to a 13-year term of imprisonment. (Doc. 7; Doc. 14, Exhs. H, J.)
The Arizona Court of Appeals described the facts of the case, as follows:
¶ 2 Stroble entered the victim's [Julie Plummer] pet grooming shop and demanded money from her.[] After the victim initially refused, Stroble became agitated, used profanity and slammed the counter with his hand. One of the victim's customers came into the shop and left $40 on the counter in
payment. Stroble again demanded money of the victim, took the $40 from the counter and eventually left the shop.State v. Stroble, 2016 WL 739072 (Ariz. Ct. App. February 25, 2016).
¶ 3 A jury convicted Stroble of robbery and found two aggravating circumstances. After finding Stroble had several prior felony convictions, the superior court sentenced him to an aggravated sentence of 13 years' incarceration with 741 days of presentence incarceration credit.
Petitioner's counsel filed a timely appeal pursuant to Anders v. California, 386 U.S. 738 (1967), and Petitioner filed a pro per supplemental brief raising the following claims: (1) Insufficient evidence to support the conviction; (2) Ineffective assistance of trial counsel; (3) The State should have presented exculpatory evidence to the grand jury; and (4) The criminal complaint was filed untimely. See Stroble, 2016 WL 739072.
On February 25, 2016, the Court of Appeals affirmed Petitioner's conviction and sentence. See id. The court found sufficient evidence to support the convictions; Petitioner's grand jury claim was untimely; Petitioner's criminal complaint claim failed under state law; and Petitioner's ineffective assistance of counsel claim lacked jurisdiction on direct review. See id. Petitioner filed a petition for review to the Arizona Supreme Court, which it denied on September 30, 2016. (Exh. O.)
On October 4, 2016, Petitioner filed a notice of post-conviction relief (PCR). (Exh. P.) Appointed counsel filed a notice of completion notifying the court that, after a review of the record, he could find no claims for relief to raise in PCR proceedings. (Exhs. Q. R.) Petitioner was afforded the opportunity to file a pro per PCR petition and did so raising the following claims: (1) Petitioner was held in jail for 5 days before the State filed an indictment against him in violation of the Constitution; (2) Petitioner was arrested and charged without probable cause in violation of the Fourth Amendment; and (3) Ineffective assistance of trial counsel for (a) failing to investigate who the customer was who witnessed the robbery, (b) failing to question discrepancies in the victim's testimony at trial, and (c) failing to establish that the police influenced the testimony of the victim and that the victim influenced the testimony of other witnesses. (Exhs. R, T, U, V.) The state court denied relief on the bases set forth in the State's response. (Exhs. U, V.)
Petitioner then filed a petition for review to the Arizona Court of Appeals, raising the following claims: (1) Actual innocence; (2) Petitioner was arrested and charged without probable cause; and (3) Trial counsel was ineffective for failing to cross-examine witnesses and show that their testimony was influenced. (Exh. W.) On April 4, 2019, the Court of Appeals granted review, but denied relief. See State v. Stroble, 2019 WL 1499494 (Ariz. Ct. App. April 4, 2019). The mandate issued on May 16, 2019. (Exh. Y.)
In his amended habeas petition, Petitioner raises four grounds for relief (Docs. 6, 7):
(1) Petitioner was arrested without probable cause, in violation of the Fifth and Fourteenth Amendments;
(2) The State failed to obtain sufficient evidence to charge Petitioner and there was insufficient evidence to convict Petitioner, in violation of the Fifth, Sixth, and Fourteenth Amendments;
(3) Petitioner received ineffective assistance of counsel, in violation of the Fifth and Sixth Amendments, by counsel's failure to: a) investigate and interview witnesses, b) discover whether Plummer had relatives in the police department, c) ask a witness, Renee Corbin, who she was talking to during defense interview, d) determine why Petitioner was held without charges, e) inform court of Plummer's actions during police interview, f) ask police why they did not arrest Petitioner upon initial contact, g) determine who customer was that witnessed the robbery and failing to interview that person, h) ask police why they did not get fingerprints or DNA samples, i) take photos of Plummer's business, j) interview anyone from neighboring businesses, k) ask whether Plummer had insurance, l) obtain receipt to prove a transaction occurred, m) give police reports to Petitioner, n) ask police about discrepancies in police reports, and o) have charges severed;
(4) Petitioner's Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when he was held in custody without charges.
In their Answer, Respondents argue that Petitioner's claims are not cognizable on habeas, procedurally defaulted, or meritless. \\\
DISCUSSION
A. Standards of Review
1. Merits
Pursuant to the AEDPA, a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is "difficult to meet." Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a "highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). "When applying these standards, the federal court should review the 'last reasoned decision' by a state court ... ." Robinson, 360 F.3d at 1055.
A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 404-05. "A state court's decision can involve an 'unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
2. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have "fairly presented" to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). A claim is only "fairly presented" to the state courts when a petitioner has "alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution." Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.").
A "general appeal to a constitutional guarantee," such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory."). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
Even when a claim's federal basis is "self-evident," or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, "either by citing federal law or the decisions of federal courts." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court "must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim" to discover implicit federal claim).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both "independent" and "adequate" - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.") (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is "independent" if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is "adequate" if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S.
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.") (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.") (citing Harris, 489 U.S. at 264 n.10).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred"); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he 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.'") (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1, 255, 262-53 (1982)). 32.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4 (time bar), 32.16 (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are "independent" of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) ("We have held that Arizona's procedural default rule is regularly followed ["adequate"] in several cases.") (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not "strictly or regularly followed" Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the "cause and prejudice" test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. "A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis." Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable "cause" for a petitioner's failure to fairly present his claim. Regarding the "miscarriage of justice," the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as "plainly meritless"). B. Grounds One and Four
The Court also addresses Ground Four in part C below.
In Ground One, Petitioner argues that he was arrested without probable cause, in violation of the Fifth and Fourteenth Amendments. Similarly, in Ground Four, Petitioner alleges that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when he was held in custody without charges. Although Petitioner alleges violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights, the Court construes Petitioner's claims that he was arrested without probable cause and unlawfully detained as an attack on the reasonableness of his seizure under the Fourth Amendment.
The Fourth Amendment prohibits unreasonable searches and seizures. In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme Court held that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the Fourth Amendment issue. See also Moorman v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005) (citing Powell, 428 U.S. at 494). In reviewing a federal habeas petitioner's Fourth Amendment claim, "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
Here, Petitioner does not dispute that he received a full and fair opportunity to litigate his Fourth Amendment claim before the trial court. As such, despite the fact that he failed to do so, the Court finds that Petitioner received a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. See Ortiz-Sandoval, 81 F.3d at 899. Because a "Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court," the Court will recommend that Grounds One and Four be denied. C. Sub-parts of Grounds Two and Three; Ground Four
1. Sub-part of Ground Two
In a sub-part of Ground Two, Petitioner complains about defects in the grand jury proceedings, alleging that the State failed to present sufficient evidence to charge Petitioner. In his direct appeal, Petitioner presented a similar claim complaining about defects in the grand jury proceedings. However, the Arizona Court of Appeals dismissed the claim as untimely finding, in pertinent part:
Pursuant to Arizona Rule of Criminal Procedure 12.9, however, challenges to grand jury proceedings must be brought within 25 days after arraignment or after the certified transcript and minutes are filed. Ariz. R. Crim. P. 12.9(b). Accordingly, Stroble's challenge to the grand jury proceedings is untimely and will not be considered. See State v. Smith, 123 Ariz. 243, 248, 599 P.2d 199 (1979) ("A defendant waives his objections to the grand jury proceeding by failing to comply with the timeliness requirement.").Stroble, 2016 WL 739072.
Arizona Rule of Criminal Procedure 12.9(a) permits "[a] defendant [to] challenge a grand jury proceeding only by filing a motion for a new finding of probable cause alleging that the defendant was denied a substantial procedural right or that an insufficient number of qualified grand jurors concurred in the indictment." Arizona rules require that such a motion must be filed "no later than 45 days after the certified transcript and minutes of the grand jury proceedings are filed or no later than 45 days after [his or her] arraignment, whichever is later." Ariz. R. Crim. P. 12.9(b). As the Arizona Supreme Court held in State v. Smith, "[a] defendant waives his objections to the grand jury proceeding by failing to comply with the timeliness requirement." 599 P.2d 199, 204 (Ariz. 1979); see also State v. Lamb, 690 P.2d 764, 769 (Ariz. 1984) (citing Ariz. R. Crim. P. 12.9 and holding that Lamb had "waived his right to challenge the determination of probable cause by failing to act in a timely manner" by "not challeng[ing] the determination of probable cause until the instant appeal"). This time bar is independent as well because it does not "depend[ ] on a federal constitutional ruling ...." See Stewart, 536 U.S. at 860. Because the appellate court applied an independent and adequate state law ground to deny review of the claim alleged in the sub-part of Ground Two, federal habeas corpus review of that claim is procedurally barred.
2. Sub-parts of Ground Three
In Ground Three, Petitioner alleges 15 sub-parts of ineffective assistance of counsel, including allegations that counsel was ineffective by failing to: a) investigate and interview witnesses, b) discover whether Plummer had relatives in the police department, c) ask a witness, Renee Corbin, who she was talking to during defense interview, d) determine why Petitioner was held without charges, e) inform court of Plummer's actions during police interview, f) ask police why they did not arrest Petitioner upon initial contact, g) determine who customer was that witnessed the robbery and failing to interview that person, h) ask police why they did not get fingerprints or DNA samples, i) take photos of Plummer's business, j) interview anyone from neighboring businesses, k) ask whether Plummer had insurance, l) obtain receipt to prove a transaction occurred, m) give police reports to Petitioner, n) ask police about discrepancies in police reports, and o) have charges severed.
From the Court's review of the state court proceedings, construed liberally, it appears that the only claim Petitioner raised in both his PCR petition and petition for review to the Arizona Court of Appeals was that counsel was ineffective for failing to question or cross-examine a witness regarding witness tampering (Ground Three (c)). Petitioner, however, failed to fairly present the remaining issues to both the state court and the Arizona Court of Appeals. Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 32.2, 32.4, 32.16.
3. Ground Four
In Ground Four, Petitioner claims that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when he was held in custody without charges.
Liberally construed, Petitioner presented the above claim to the state court in his PCR petition. In denying relief, the state court, agreeing with the arguments set forth in the State's response, found that the claim was precluded by Arizona Rule of Criminal Procedure 32.2(a)(3). Under Arizona Rule of Criminal Procedure 32.2(a)(3), a defendant is precluded from raising claims that could have been raised and adjudicated on direct appeal or in any previous collateral proceeding. See also State v. Curtis, 912 P.2d 1341, 1342 (Ariz. Ct. App. 1995) ("Defendants are precluded from seeking post-conviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for post-conviction relief."); State v. Berryman, 875 P.2d 850, 857 (Ariz. Ct. App. 1994) (defendant's claim that his sentence had been improperly enhanced by prior conviction was precluded by defendant's failure to raise issue on appeal).
Arizona Rule of Criminal Procedure 32.2(a)(3) constitutes an "adequate and independent" state ground for denying review. See Stewart, 536 U.S. at 860 (preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) "are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) ("Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has been regularly and consistently applied, so it is adequate to bar federal review of a claim."); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) ("[A] claim that has been 'waived' under [Ariz. R. Crim. P. 32.2(a)(3)] is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice.") (quoting Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1998)). Accordingly, because the state court denied the claim contained in Ground Four by invoking an adequate and independent state rule, the claim alleged in Ground Four is procedurally barred.
4. Cause for the Defaults and Actual Prejudice, or a Fundamental Miscarriage of Justice
Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner has not established that any exception to procedural default applies.
Throughout his 31-page reply, Petitioner discusses the alleged facts and merits of his habeas claims, and fails to address cause and prejudice as an excuse for his defaults. To the extent Petitioner asks for leniency from the Court due to his status as an inmate, lack of legal knowledge and assistance, and limited legal resources, these reasons do not establish cause to excuse the procedural bar. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.
In his reply, Petitioner asserts that he is actually innocent and that a fundamental miscarriage of justice occurred in this case. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a "fundamental miscarriage of justice." Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is "demanding." House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial." Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner "must demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a 'miscarriage of justice.'" House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a petitioner must present "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327.
Much of what Petitioner presents in his reply on this issue consists of conclusory attacks on the credibility of witnesses and unsupported challenges to the sufficiency of the evidence. Although a Schlup gateway claim does not require affirmative proof of innocence, a petitioner cannot merely attempt to discredit the state's case and must affirmatively present new, exculpatory evidence. See Sistrunk v. Armenakis, 292 F.3d 669, 673, 676 (9th Cir. 2002); Larsen v. Soto, 742 F.3d 1083, 1095-96 (9th Cir. 2013) ("[E]vidence [that] casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, ... can be enough to pass through the Schlup gateway ... [; however, the court has] denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt."). Here, Petitioner's one-sentence attacks and challenges attempting to discredit the State's case are not sufficient.
Nor does Petitioner present any new, reliable evidence. See Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003) (holding a petitioner must point to new evidence not presented at trial). Petitioner has filed a compact disc with his reply containing a recording of his attorney's telephonic pretrial interview of Rene Corbin, a dog groomer who worked in Plummer's shop and testified for the prosecution at trial. Petitioner alleges that Plummer was present during the pretrial interview and told Corbin what to say. Specifically, Petitioner states that during the interview, Corbin answered one of counsel's questions stating that she "does not remember the time of day" that she saw Petitioner outside of the store. Then, Petitioner states that Corbin can be heard stating, "she's [allegedly referring to Plummer] telling me now it was after hours." Based on this, Petitioner argues that all of Corbin's trial testimony is "fabricated and has prejudiced Petitioner."
Initially, the Court notes that defense counsel's recording of Corbin's pretrial interview was available before and during trial, and plainly was not the type of newly discovered evidence contemplated under Schlup. Moreover, the Court's examination of the disc reveals that not only were Corbin and defense counsel on the call, but deputy county attorney Jennifer Carper was also present. Under these circumstances, any suggestion that Plummer was present during the interview telling Corbin what to say is pure speculation.
Furthermore, any such evidence is not direct evidence of Petitioner's innocence, but rather used for impeachment purposes. Such impeachment evidence, at best, "is a step removed from evidence pertaining to the crime itself." Calderon v. Thompson, 523 U.S. 538, 563, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Indeed, the record reflects that Corbin came to the grooming shop in the late afternoon after the robbery had already occurred earlier in the day. Corbin testified that she came the shop as a result of an "odd text" she had received from Plummer. Corbin was at the shop when Petitioner came back a third time during business hours and testified to Petitioner's demeanor. Corbin testified that Petitioner knocked on the door, began leaning on the door, and was "frustrated" that he could not come inside to see Plummer. (Exh. F at 74-89.) Although Corbin testified that she felt "threatened," she testified favorably for the defense on cross examination, as follows:
[MR. MORRISON]. Okay. And the person at the door, he never threatened you, right?
A. No.
Q. He never said open the door or else?
A. No.
Q. All right. He didn't say if you don't open that door, I'm going to get you?
A. No.
Q. All right. He didn't, uh, take a swing at the door or anything like that, right?
A. No, he was just very insistent about getting in.
Q. He didn't give you the finger or anything like that?(Exh. F at 86-87.)
A. No, sir.
Q. All right.
MR. MORRISON: I have no further questions, judge. Thank you.
It is unclear, and Petitioner fails to explain, how information on the disc establishes that Corbin fabricated her testimony, and the Court cannot say that had the disc evidence been presented to the jury that no reasonable juror would have voted to convict Petitioner.
In sum, Petitioner fails to point to the kind of new evidence contemplated by the Supreme Court such as "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. Thus, the Court finds that Petitioner has not offered any new reliable evidence of actual innocence sufficient to establish that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Therefore, Petitioner cannot excuse his procedural defaults on this basis.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created a "narrow exception" to the principle that "an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Id. The Court held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id.
"Cause" is established under Martinez when: (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).
The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert "cause" to overcome the procedural bar based on attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." Id. at 16.
Petitioner has not demonstrated "substantial" claims of ineffective assistance of counsel. A "substantial" claim "has some merit." Id. at 14. Like the standard for issuing a certificate of appealability, to establish a "substantial" claim, a petitioner must demonstrate that "reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (internal quotations omitted). In other words, a claim is "'insubstantial' if it does not have any merit or is wholly without factual support." Id. Determining whether an ineffective assistance of counsel claim is "substantial" requires a district court to examine the claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See id. at 687-88. To establish deficient performance, a petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Id. at 699. A petitioner's allegations and supporting evidence must withstand the court's "highly deferential" scrutiny of counsel's performance, and overcome the "strong presumption" that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 689-90. A petitioner bears the burden of showing that counsel's assistance was "neither reasonable nor the result of sound trial strategy," Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that "'might be considered sound trial strategy'" do not constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, a petitioner must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the possibility that a petitioner suffered prejudice is insufficient to establish Strickland's prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) ("[A petitioner] must 'affirmatively prove prejudice.' ... This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him.") (quoting Strickland, 466 U.S. at 693). However, the court need not determine whether counsel's performance was deficient if the court can reject the claim of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the court may proceed directly to the prejudice prong).
As noted above, in Ground Three, Petitioner alleges 15 sub-parts of ineffective assistance of counsel - 14 of which were not fairly presented. His claims are presented in a line-up fashion separated by commas, much like a checklist. Petitioner fails to supplement his bare allegations, and he does not provide an affidavit, declaration, or any other form of evidence in support of his claims. Instead, Petitioner relies solely on unsupported and conclusory statements. Accordingly, none of Petitioner's allegations establish substantial claims of ineffective assistance of counsel. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (finding petitioner's "cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief."); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (conclusory allegations of ineffective assistance do not warrant relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same). Thus, Petitioner has not demonstrated cause for his procedural default of his ineffective assistance of counsel claims under Martinez. D. Sub-part of Ground Two and Ground Three (c)
1. Sub-part of Ground Two
In the remaining sub-part of Ground Two, Petitioner alleges there was insufficient evidence to convict him in violation of the Fifth, Sixth, and Fourteenth Amendments. Petitioner raised an insufficient evidence claim in his direct appeal. In denying the claim, the Arizona Court of Appeals stated:
1. Sufficiency of the evidence.Stroble, 2016 WL 739072.
¶ 4 Stroble challenges the sufficiency of the evidence, arguing the State failed to offer evidence aside from the victim's testimony. Stroble provides no legal authority, however, to support his argument that a victim's testimony may not be sufficient evidence, by itself, to support a conviction. "[A] conviction may be based on the uncorroborated testimony of the victim unless the story is physically impossible or so incredible that no reasonable person could believe it." State v. Munoz, 114 Ariz. 466, 469, 561 P.2d 1238 (App. 1976). The record here contains sufficient evidence, recounted above, to support Stroble's conviction. The State presented the testimony of the victim, who recounted Stroble's threatening behavior. The victim testified she told Stroble she had no money to give him and testified she felt threatened when his behavior became increasingly aggressive. No evidence before the jury contradicted the victim's version of events. On appeal, we will not reweigh the evidence. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355 (1981). To warrant reversal, there must be a complete lack of probative evidence supporting the verdict. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43 (App. 2004). The record plainly contains sufficient evidence to support Stroble's conviction.
¶ 5 Stroble also argues the superior court erred when it failed to grant his Rule 20 motion for a judgment of acquittal. In this argument, Stroble essentially re-argues his contention that the State offered insufficient evidence to support the conviction. For the reasons stated above, the court did not err by denying Stroble's Rule 20 motion.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Court held that a sufficiency-of-the-evidence claim must be rejected unless, based on the evidence presented at trial, "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. All evidence must be considered in the light most favorable to the prosecution. See id. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). While the standard under Jackson is deferential, AEDPA applies an additional layer of deference in federal habeas cases. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal court may overturn a state court decision rejecting a sufficiency-of-the-evidence challenge "only if the state court decision was 'objectively unreasonable.'" Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam); see Juan H., 408 F.3d at 1275 n.13. This "double dose of deference ... can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 566 U.S. 1039 (2012); see Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.").
Moreover, because "a court under Jackson makes no 'determination of the facts' in the ordinary sense of resolving factual disputes," a Jackson claim presented in a federal habeas petition is evaluated under 28 U.S.C. § 2254(d)(1) (unreasonable application of federal law), not 28 U.S.C. § 2254(d)(2) (unreasonable determination of the facts). Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir. 2007) ("We have recently joined our sister circuits in using § 2254(d)(1) to evaluate a state court's sufficiency-of-the-evidence determination under Jackson."), vacated in part on other grounds, 503 F.3d 822 (9th Cir. 2007), reversed on other grounds, 555 U.S. 179 (2009); see Flores v. Beard, 533 F. App'x 730, 731 n.1 (9th Cir. 2013) ("Because we 'evaluate a state court's resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2),' we do not address [petitioner]'s § 2254(d)(2) argument."); Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) ("When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1), ... we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.").
The Arizona statute under which Petitioner stands convicted provides, in pertinent part:
A. A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.A.R.S. § 13-1902 (A). The jury was advised of these elements as part of jury instructions.
The Court finds that the evidence submitted at trial supported the appellate court's finding that substantial evidence supported the jury's verdict.
On the instant record, the state court's factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Here, Plummer's testimony at trial establishes that Petitioner entered Plummer's pet grooming shop and demanded money from her. After her initial refusal, Petitioner became agitated, slammed his hand on the counter, and shouted, "I need the fucking money." After one of Plummer's customers came into the shop and left $40 on the counter in payment for grooming services, Petitioner again demanded money from Plummer stating, "Give me that fucking money." Petitioner then took the $40 on the counter and left the shop. See Stroble, 2016 WL 739072; (Exh. E at 27-36.) And, as the Court of Appeals noted, "No evidence before the jury contradicted the victim's version of events." Id.
In his habeas petition, Petitioner complains that there was no supporting or corroborating evidence, including fingerprints, video, or DNA evidence, presented. The Court is not persuaded. "It is well established that the uncorroborated testimony of a single witness may be sufficient to sustain a conviction," United States v. Katakis, 800 F.3d 1017, 1028 (9th Cir. 2015) (quoting United States v. Dodge, 538 F.2d 770, 783 (8th Cir. 1976)), and on habeas, a jury's credibility determinations are entitled to near-total deference under Jackson. See Schlup, 513 U.S. at 330 ("[U]nder Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review."); see also United States v. Brady, 579 F.2d 1121, 1127 (9th Cir.1978) (explaining that, in applying Jackson test for sufficiency of the evidence, "it is the exclusive function of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts"); United States v. Ramos, 558 F.2d 545, 546 (9th Cir.1977) ("[T]he reviewing court must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict.").
Accordingly, the Court finds that the evidence presented at trial was sufficient for the jury to find Petitioner guilty of robbery. The appellate court's ruling was neither contrary to, nor an unreasonable application of, clearly established federal law, nor based on an unreasonable determination of the facts in light of the evidence presented. The Court will recommend that Petitioner's claim as alleged in the sub-part of Ground Two be denied.
2. Ground Three (c)
In Ground Three (c), Petitioner contends that he received ineffective assistance of counsel by counsel's failure to ask Renee Corbin, a witness for the prosecution, who she was talking to during defense counsel's pretrial interview. Petitioner basis his claim on the compact disc containing the recording of his attorney's telephonic pretrial interview of Corbin that the Court has referred to previously in this recommendation. Again, Petitioner alleges that Plummer was present during the interview and told Corbin what to say.
As the Court has noted, the contents of the disc reveal that only Corbin, defense counsel, and deputy county attorney Jennifer Carper were present on the call. Thus, any suggestion that Plummer was present during the interview telling Corbin what to say is entirely speculative as Petitioner presents no evidence and fails to cite to anything in the record to substantiate his assertion. Thus, there could be no deficient performance for counsel's failure to question Corbin on this point. See, e.g., Jones, 66 F.3d at 204 (conclusory allegations of ineffective assistance do not warrant relief); James, 24 F.3d at 26 (same).
Further, even assuming deficient performance, any such testimony would, at best, have been used for impeachment purposes as the record reflects that Corbin came to the grooming shop in the late afternoon after the robbery had already occurred earlier in the day. Thus, Petitioner cannot establish any reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
The state court's determination was not contrary to, nor an unreasonable application of federal law, and as such, the Court will recommend that Petitioner's claim as alleged in Ground Three (c) be denied.
CONCLUSION
Having determined that Petitioner's claims are not cognizable on habeas, procedurally defaulted without an excuse, or meritless, the Court will recommend that Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 6) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 6) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
Dated this 29th day of March, 2021.
/s/_________
Honorable Michelle H. Burns
United States Magistrate Judge