Opinion
CV 20-01336-PHX-MTL (MHB)
04-15-2021
John Frank Todorich, Petitioner, v. David Shinn, et al., Respondents.
ORDER
HONORABLE MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT COURT:
Petitioner John Frank Todorich, who is confined in the Arizona Department of Corrections, filed an amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docs. 1, 11). Respondents filed an Answer and Petitioner filed a reply. (Docs. 9, 12.)
After Respondents filed their Answer, Petitioner filed a motion to amend his habeas petition to strike Ground Four. Respondents filed a response to the motion, stating that to the extent the only change to the original Petition is the striking of Ground Four, they do not object to the granting of the motion. The Court, subsequently, granted Petitioner's motion to amend allowing Petitioner to strike Ground Four.
BACKGROUND
Pursuant to a plea agreement, Petitioner was convicted in Maricopa County Superior Court, case #CR 2013-001956-001, of three counts of luring a minor for sexual exploitation, transporting person s for the purpose of prostitution, sexual conduct with a minor, child prostitution, attempt to commit child prostitution, and attempt to commit luring a minor for sexual exploitation. Petitioner was sentenced to a 40-year term of imprisonment and lifetime community supervision. (Doc. 6; Doc. 9, Exhs. A, B.)
Petitioner, through counsel, filed a petition for post-conviction relief (PCR) raising the following claims: (1) “Mr. Todorich was prejudiced when his counsel failed to give him the necessary information needed to make an informed decision whether to accept the October 2, 2015, plea, ” (2) “Trial counsel was prejudicially ineffective when she failed to conduct any meaningful investigation into the facts of the case and failed to investigate mitigating factors to assist in Mr. Todorich's defense, ” and (3) “The court must reinstate the October 2, 2015, plea because no Donald advisement took place.” (Doc. 1-1, Exh. M; Doc. 9, Exh. C); State v. Todorich, 2018 WL 5984102 (Ariz.Ct.App. November 14, 2018). The state court summarily denied relief finding that the PCR petition failed to present a colorable claim for relief. (Doc. 1-1, Exh. K.)
Petitioner then filed a petition for review to the Arizona Court of Appeals, raising the same claims. See Todorich, 2018 WL 5984102. On November 14, 2018, the court granted review, but denied relief. See id. Petitioner's petition for review to the Arizona Supreme Court was summarily denied, (Doc. 9, Exhs. G, H), and the mandate issued on August 6, 2019 (Doc. 9, Exh. I).
In his habeas petition, Petitioner raises three grounds for relief (Docs. 1, 11, 6):
(1) “Trial counsel deficiently performed during plea negotiations by [] failing to provide the Petitioner with necessary information to make an informed decision regarding the October 2, 2015 plea offer, and [] allow[ing] the plea deadline to expire” due to lack of communication;
(2) “Trial counsel's animus toward the Petitioner inhibited her ability to effectively advocate on his behalf. As a result, counsel abrogated her duties of Competence and Diligence owed to the Petitioner and rendered ineffective assistance”; [and]
(3) “Defense counsel was prejudicially ineffective by [] failing to conduct any meaningful investigation into [] possible mitigating factors to assist in the Petitioner's defense; and [] not maintain[ing] communication with the Petitioner or his private counsel, and allowing plea deadline to expire.”
In their Answer, Respondents argue that Petitioner's claims are 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, 27578 (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. 255, 262-53 (1982)).
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, 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). See also Ariz.R.Crim.P. 33 (same rules as applicable to defendants who pleaded guilty). 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. Ground Two
In Ground Two, Petitioner argues that “[t]rial counsel's animus toward the Petitioner inhibited her ability to effectively advocate on his behalf. As a result, counsel abrogated her duties of Competence and Diligence owed to the Petitioner and rendered ineffective assistance.”
To the extent Petitioner raises a claim regarding counsel's failure to communicate, the Court construes said claim as the same claim asserted in Ground One addressed below.
Petitioner failed to fairly present the claim alleged in Ground Two to both the state court and the Arizona Court of Appeals. Failure to fairly present this claim has resulted in the procedural default of the claim because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 33.2, 33.4, 33.16.
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.
In his reply, Petitioner recites the law regarding exhaustion and procedural default, and claims that “the reasons underlying the deficient assistance [] do not constitute a novel deviation from the central premise of his petition: that Ms. Sanford provided constitutionally deficient service.” Petitioner claims that his “then attorney asserted that he was prejudicially denied his Sixth Amendment right to effective assistance of counsel, ” and states that “[t]his argument centered around trial counsel's failure to provide necessary information needed for the Petitioner to make an informed decision whether to accept the October 2015 plea.” Petitioner states that he “clearly [fairly presented his claim] in all three PCR proceedings, by arguing that his IAC claim was based on the denial of his sixth amendment right to counsel.” The Court is not persuaded.
The record reflects that Petitioner appears to have fairly presented the claims alleged in Ground One that his counsel was ineffective for “failing to provide the Petitioner with necessary information to make an informed decision regarding the October 2, 2015 plea offer, ” and due to counsel's alleged lack of communication, Petitioner unknowingly let the October 2015 plea expire. Further, Petitioner appears to have fairly presented the claims alleged in Ground Three that his counsel was ineffective for failing to conduct any meaningful investigation into possible mitigating factors to assist in the Petitioner's defense, and not maintaining communication with Petitioner allowing plea deadline to expire.
Notably, the claims alleged in Petitioner's habeas petition appear to overlap and repeat. Any claim alleged in Ground Two that has been fairly presented and has also been alleged in Grounds One and Three, will be addressed below.
However, although Petitioner did assert ineffective assistance of counsel claims in both his PCR petition, as well as, his petition for review, he failed to fairly present to the state courts the exact federal claim he raises in Ground Two on habeas. “As a general matter, each ‘unrelated alleged instance [] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)). This means “all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”).
Thus, Petitioner has failed to fairly present the exact claim alleged in Ground Two, and has not shown cause for his resulting default.
Petitioner has also not established a fundamental miscarriage of justice. 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.
Petitioner has failed to establish, much less argue, a sufficient showing of actual innocence to establish a miscarriage of justice. Thus, Petitioner cannot excuse his procedural default 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 a “substantial” claim 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).
In support of his claim alleged in Ground Two arguing that “[t]rial counsel's animus toward the Petitioner inhibited her ability to effectively advocate on his behalf, ” Petitioner cites to an email correspondence between his newly-appointed trial counsel, Kellie Sanford, and Deputy County Attorney Ryan Powell, wherein counsel is responding to the prosecutor's request for status. Counsel states that she “hasn't even had a chance to review discovery yet, ” explains that she will give him an update next week, asks for a briefing on the procedural history, and states “[s]ounds like a pain in the ass client.” Petitioner also submits his own “Affidavit” alleging that he had limited contact with counsel.
Petitioner has no constitutional right to an attorney whom he personally likes and who likes him. See Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (rejecting notion that Sixth Amendment guarantees a criminal defendant the right to a “meaningful relationship” with counsel). In Morris v. Slappy, the Court held that there is no Sixth Amendment right to “a ‘meaningful relationship' between an accused and his counsel, ” reasoning that, “[n]o court could possibly guarantee that a defendant will develop the kind of rapport with his attorney-privately retained or provided by the public-that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel.” 461 U.S. at 13-14.
The Supreme Court has held that a defendant is entitled to counsel who “function[s] in the active role of an advocate.” Entsminger v. Iowa, 386 U.S. 748, 751 (1967); see also United States v. Cronic, 466 U.S. 648, 656 (1984). Petitioner has not demonstrated that his attorney failed to satisfy this obligation or acted unreasonably in the Strickland sense. Strickland, 466 U.S. at 687. Rather, Petitioner offers up only unsupported, conclusory and self-serving statements. While counsel's email correspondence stating “[s]ounds like a pain in the ass client” may have been in poor taste, Petitioner fails to establish deficient performance or that trial counsel's alleged animus toward Petitioner inhibited her ability to effectively advocate on his behalf. Petitioner's allegations, unsupported by specifics, do not establish a substantial claim of ineffective assistance of counsel. See, e.g., 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 fails to establish cause for procedural default of Ground Two under Martinez.
C. Ground One
In Ground One, Petitioner argues that “Trial counsel deficiently performed during plea negotiations by [] failing to provide the Petitioner with necessary information to make an informed decision regarding the October 2, 2015 plea offer, and [] allow[ing] the plea deadline to expire” due to lack of communication.
Construed liberally, Petitioner raised these claims in his PCR petition and petition for review to the Arizona Court of Appeals. In denying the claims, the Arizona Court of Appeals stated:
¶ 6 At a settlement conference in October 2015, the judge who conducted the conference informed Todorich, “[T]he plea offer is 14 to 27 years. The presumptive is 20 years.” He went on, “If you go to trial there's mandatory consecutive sentences on two of the counts with a presumptive of 20 years. It would be, 40 years is the presumptive.” The judge also told Todorich that the state had “a very strong case” and that “it's tough to mount a defense in these types of cases ... when young children come in to testify.” Todorich questioned the judge about which charges would be included in the plea, and the court told him “some charges are stronger than the others, ” but indicated that if he were convicted after a trial, given his age, the resulting sentence “would amount to a lifetime.” Todorich responded, “I am afraid at my age the plea is also a death sentence.” The prosecutor clarified that on counts relating to two other victims, Todorich would face another thirty-four years if convicted. And he explained that under the plea being offered, all but three counts would be dismissed. The prosecutor also noted that Todorich had “been trying to get the bottom end of the range down to ten years, ” but that the state would not offer that. The parties agreed to allow Todorich time to consider the plea and to delay the trial, so no firm deadline on the offer was set.
¶ 7 At a February 2016 conference to continue the trial again, the trial court asked if there was “any value to a settlement conference” before the new trial date. The prosecutor stated that the defense had “submitted a deviation request, ” which the state had granted, and that the defendant had thereafter “decided that that was not a plea he was interested in.” The court informed Todorich that if he wished to seek another settlement conference he should contact his counsel, and Todorich responded, “Okay, ” without any further comment on the October plea.
¶ 8 In June 2016, at a settlement conference on the day of trial, the state offered to dismiss the counts as to two of the victims, with no reduction of charges as to the remaining victims. The judge explained that would result in “a possibility of a sentence of 26 years with a probation tail on the other counts.” The judge conducting the conference clarified that twenty-six years would be the minimum and that the presumptive sentence was more. The prosecutor elaborated on their previous negotiation, noting that he had “opened up the plea where you could have gotten as low as 13 years. You said you were going to accept that, and then we went in to do it and you didn't accept it.” He then explained the state's case in detail. Later in the discussion, Todorich asked about the previous plea and the prosecutor's agreement to “leave the plea open.” The prosecutor stated he had made it clear that once they were going to trial he would not “plead[ ] out a case.” The judge also later explained that the presumptive prison term on the most serious counts was twenty years and two would be consecutive. Todorich did not change his plea at the conference, but thereafter entered guilty pleas as outlined above.
¶ 9 At sentencing, Todorich also addressed the October plea, indicating the judge at the conference had suggested he would get a maximum prison term of seventeen years and noting that his attorney had “felt with the risk assessment we would even get it lower than that.” He said, “But at that time I thought that was still a pretty long sentence for a man of my age for what I've done. What I did was wrong, but I hoped and prayed that I'd get another plea.”
¶ 10 On this record, we cannot say the trial court abused its discretion in concluding Todorich's “contention that he rejected earlier plea offers because of ineffective assistance of counsel is contrary to the record.” In order to establish a claim of ineffective assistance a defendant must do more than simply contradict what the record plainly shows. See State v. Jenkins, 193 Ariz. 115, ¶ 15 (App. 1998) (defendant's claim he was unaware sentence “must be served without possibility of early release” not colorable when “directly contradicted by the record”). As detailed above, nothing in the record suggests Todorich rejected the offered pleas on any basis other than the length of the resulting sentences. He was informed of the sentences he faced and the terms of the agreements offered, and even after the state agreed to a “deviation” from its offer, declined the offer in hopes of a better offer being made.Todorich, 2018 WL 5984102.
The two-part test under Strickland applies to ineffective assistance of counsel claims relating to the plea process. See Missouri v. Frye, 566 U.S. 134, 140-41 (2012); Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Hill v. Lockhart, 474 U.S. 52, 57 (1985). Generally, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 566 U.S. at 145. “A defendant has the right to make a reasonably informed decision whether to accept a plea offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (citations omitted). As such, trial counsel must adequately inform the defendant, so that he has “the tools he needs to make an intelligent decision” regarding the plea. Id. at 881. While counsel must adequately inform the defendant, the question is not whether “counsel's advice [was] right or wrong, but ... whether that advice was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970); see Turner, 281 F.3d at 880. Counsel's ineffectiveness results from “gross error, ” not a failure to “accurately predict what the jury or court might find.” Turner, 281 F.3d at 881. Counsel is also not required to “discuss in detail the significance of a plea agreement, ” or “strongly recommend the acceptance or rejection of a plea offer.” Id.
In order to show prejudice in the context of plea offers, “a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler, 566 U.S. at 163. Where it is alleged that trial counsel's advice caused the defendant to reject the plea offer, “a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id. at 164.
The Court having reviewed settlement proceedings in this matter finds that Petitioner was adequately informed with the information he needed to make a reasonably informed decision. Coupled with the appellate court's documentation of the settlement proceedings, the Court emphasizes the fact that the prosecutor indicated in the February 2016 conference that Petitioner had turned down the October 2015 plea offer, despite the fact that the State had agreed to Petitioner's request for an offer containing a lesser sentence. (Doc. 1-1, Exh. I.) The prosecutor reiterated these events at the June 6, 2016 settlement conference, stating:
[Prosecutor]: And I'll just remind you, [Mr. Todorich], that after our last settlement conference the original offer when I came on the case was 17 years. You asked for a number that went below that and said if we gave that to you you would take the plea.
So I went back, talked to all of my bosses, got approval, opened up the plea where you could have gotten as low as 13 years. You said you were going to accept that, and then we went in to do it and you didn't accept it. So you had the chance to get as low as 13 years.
* * *
THE DEFENDANT: I don't want to put [the victims] through [a trial], I really don't.
[Prosecutor]: You have the opportunity not to, and you said the exact same thing when you could have gotten 13 years. Oh, 13 years is a life sentence, what's the difference. If you don't want to put the victims through it and if you care about these kids at all, all evidence to the contrary, you have the opportunity to make this go away, take it, take responsibility. Otherwise, I don't care. I'm going to try you and I'm going to put you in prison for the rest of your life with no chance of ever getting out alive. But if you want to prevent these kids from having to come in and relive what you did to them, now is your chance. Step up, own up, take responsibility.
THE DEFENDANT: Why is it so important to give me a life sentence? I mean, the 13, 20, that doesn't give me a whole lot either but it's a whole lot better.
[Prosecutor]: You are talking as if there was never any other plea on the table and we both know that's not the case. We had a settlement conference with Judge Reinstein. You said if you do this, I will take the plea. I went back, I got that approved. I told your lawyer we can do the plea and you were going to take it, you said you were going to take it and we set it up. So you can't sit here and act like this is the only option that you have ever had. You had the option at a far lower plea.
You chose not to take it. Because you chose not to take it and we got to the eve of trial, I'm meeting with all these kids that are saying you sexually abused them. And if you want to say you didn't, fine, the jury can decide. Bringing up stuff from years ago that they went through at your -- I won't say hands, I won't specify what body part -- but because of you. If you would have taken the plea that you said you were going to take, you would have had a chance for 13 years.(Doc. 1-1, Exh. F.)
Petitioner does not dispute these facts, and he even acknowledged at his sentencing hearing that “[the prosecutor] told me when I had my 13, 20, 24 plea, I didn't sign it with hopes that I would get something a little more reasonable. I hoped to get something more reasonable. … “[I] [p]robably should have signed it right then and there” but “I was still hoping that maybe [the prosecutor] would have compassion, the victims would have compassion, and maybe get a different plea.” (Doc. 1-1, Exh. B.)
Thus, Petitioner's own words establish that he rejected the plea offer, not because of any ineffectiveness by his attorney, but in the hope that the prosecutor would give him a better deal. Based on the Court's review of the settlement conferences and sentencing transcript, the Court cannot say that case law requires more of defense counsel in this instance as Petitioner had the “tools” he needed “to make a reasonably informed decision whether to accept a plea offer.” Turner, 281 F.3d at 880-81. And, any self-serving claim to the contrary is not persuasive and insufficient to establish that his attorney rendered ineffective assistance of counsel. See id. at 881 (self-serving statements alone are insufficient to establish constitutional violations because otherwise “every rejection of a plea offer, viewed perhaps with more clarity in the light of an unfavorable verdict, could be relitigated upon the defendant's later claim that had his counsel better advised him, he would have accepted the plea offer”). 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 Ground One be denied.
D. Ground
Three In Ground Three, Petitioner claims that “Defense counsel was prejudicially ineffective by [] failing to conduct any meaningful investigation into [] possible mitigating factors to assist in the Petitioner's defense.” Specifically, Petitioner claims that counsel never consulted any expert regarding his mental health, nor did she order a psychiatric evaluation.
To the extent Petitioner also alleges that his counsel was ineffective for “not maintain[ing] communication with the Petitioner or his private counsel, and allowing plea deadline to expire, ” the Court has construed said claim as the same claim alleged in Ground One, which has been addressed above.
Again, construed liberally, Petitioner raised this claim in his PCR petition and petition for review to the Arizona Court of Appeals. In denying the claim, the Arizona Court of Appeals stated:
¶ 11 Todorich also contends counsel was ineffective in investigating mitigating evidence. But, as the trial court also pointed out, he has not identified any evidence that would have “overcome the very significant aggravating circumstances” that the court found at sentencing. Todorich therefore has not established he was prejudiced.Todorich, 2018 WL 5984102.
Strickland held that “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” 466 U.S. at 697; see Gallegos v. Ryan, 820 F.3d 1013, 1027 (9th Cir. 2016). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” Strickland, 466 U.S. at 697.
In assessing prejudice under Strickland, courts “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). The “totality of the available evidence” includes “both that adduced at trial, and the evidence adduced” in subsequent proceedings. Id. at 536 (quoting Williams, 529 U.S. at 397-98). The question is not whether a court can be certain that counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). “Strickland does not require the State to ‘rule out' a sentence of life in prison to prevail. Rather, Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability' that the result would have been different.” Id.
“[A] penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented.” Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004).
The record reflects that the court considered the emotional and physical harm to the victims, and the manipulations Petitioner used to lure the victims as aggravating factors. (Doc. 1-1, Exh. B.) As mitigating factors, the court considered acceptance of responsibility, lack of criminal history, and the fact that he pleaded guilty and ultimately saved the victims from having to testify. (Doc. 1-1, Exh. B.) The court further considered the fact that Petitioner was a great teacher and recognized the benefits that a great teacher can be for children. (Doc. 1-1, Exh. B.)
Petitioner, however, has not presented any new mitigation evidence in these habeas proceedings. Although Petitioner asserts that counsel never consulted any expert regarding his mental health, nor did she order a psychiatric evaluation, he fails to identify what mitigating information a mental health evaluation would have provided. See Hall v. Head, 310 F.3d 683, 704-05 (11th Cir.2002) (stating that the court cannot “assume that [] had [the defendant] undergone further examination, the possible ‘diagnosis' … would have, in fact, been made. ‘Speculation is insufficient to carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by further investigation.'”) (quoting Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002)); Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (“an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced”); Henry v. Ryan, 2009 WL 692356 at *73-74 (D. Ariz. Mar. 17, 2009) (petitioner's claim of ineffective assistance of counsel failed because he did not “identify the mitigating information omitted at sentencing”).
Accordingly, Petitioner has not demonstrated that the discrepancy between what was presented in mitigation and what could have been presented was of sufficient magnitude to establish prejudice. See Stankewitz, 365 F.3d at 716. Petitioner has failed to show that the state court's resolution of this claim was contrary to or based on an unreasonable application of federal law, or that it was based on an unreasonable determination of the facts. The Court will recommend that Petitioner's claim as alleged in Ground Three be denied.
CONCLUSION
Having determined that Petitioner's claims are procedurally defaulted without an excuse, or meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Docs. 1, 11) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docs. 1, 11) 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.