Opinion
CV-21-8042-PCT-JAT (JFM)
06-01-2022
Drew Michael Witzig, Petitioner v. David Shinn, Respondent.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE.
I. MATTER UNDER CONSIDERATION
Petitioner was convicted following a jury trial in Mohave County Superior Court on charges of possession of methamphetamine and drug paraphernalia, which were discovered in a traffic stop of a taxicab in which Petitioner was riding, after Petitioner was arrested on a parole violation warrant. He was sentenced on December 19, 2016 to concurrent terms, the longest of which was 15 years. (Exh. L, Sentence.) Petitioner filed an unsuccessful direct appeal and two unsuccessful post-conviction relief petitions. Petitioner then filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) and supporting Memorandum (Doc. 8) raising the following claims:
Exhibits herein are referenced as follows: to the Petition Memorandum (Doc. 8) as “Exh. P-”; to the Answer (Doc. 21), as “Exh. ”; to the Supplemental Answer (Doc. 30) as Exh. S-”; and to the Supplemental Reply (Doc. 33) as “Exh. SR-.”
1. trial ineffective assistance regarding search;
2. trial ineffective assistance re uncalled witnesses;
3. newly discovered material facts on motion to suppress;
4. ineffective assistance re unpresented evidence at (A) trial and (B) on PCR;
5. (A) denial of continuance at trial; and related ineffectiveness of (B) appellate
and (C) PCR counsel;
6. (A) no opportunity to reply on motion to suppress and related ineffectiveness of (B) appellate and (C) PCR counsel;
7. (A) exclusion of line of questioning; and related ineffectiveness of (B) appellate and (C) PCR counsel;
8. ineffective assistance of (A) appellate counsel and (B) PCR counsel regarding vindictive prosecution; and
9. ineffective assistance of (A) trial counsel and (B) PCR counsel regarding service records on taxicab.
Respondents argue: (1) Grounds 3, 6A, and 7A are non-cognizable state law claims; (2) the claims of PCR ineffectiveness in Grounds 4B, 5C, 6C, 7C, 8B and 9B are non-cognizable under 28 U.S.C. § 2254(i); (3) Grounds 5A, 5B, 9A and 9B were procedurally barred on independent and adequate state grounds; and (4) the balance of the claims are without merit. (Answer, Doc. 21.) In their Supplemental Answer (Doc. 30), Respondents argue Grounds 6A and 7A are procedurally defaulted and without merit, Ground 9A is without merit, and Ground 9B is not reviewable under 28 U.S.C. § 2254(i).
Petitioner replies that: (a) Respondents waived their procedural and substantive defenses by failing to respond in his second PCR proceeding; (b) such failure to respond establishes cause and prejudice to excuse his procedural defaults; (c) his claims are meritorious. (Reply, Doc. 25; Memorandum, Doc. 26.) In his Supplemental Reply, Petitioner argues that he properly exhausted Grounds 6A and 7A, and that they and Ground 9A are meritorious. Petitioner does not further address Ground 9B.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Petitioner was arrested after a traffic stop of a taxicab in which he was a passenger, and an ensuing search revealing drugs, drug paraphernalia, and a weapon. Eventually, a weapons charge was severed, and a theft charge dismissed. He was convicted at trial by a jury on charges of possession of dangerous drugs for sale and drug paraphernalia, and sentenced to concurrent prison terms of 14 and 3.37 years. (Exh. Q, Mem. Dec. 12/5/17 at ¶¶ 1-6; Exh. L, Sentence; Exh. D, M.E. 10/3/16.)
Petitioner filed a direct appeal, challenging the denial of a motion to suppress on the basis of the lack of reasonable suspicion for the traffic stop. In a Memorandum Decision issued December 5, 2017 (Exh. Q) the Arizona Court of Appeals found no merit to the claims, and affirmed Petitioner's convictions and sentences. Petitioner sought no further direct review. (Exh. R, Mandate.)
Petitioner filed his first post-conviction relief (PCR) proceeding through counsel, asserting various claims of ineffective assistance of counsel and a claim of newly discovered evidence. (Exh. T, PCR Pet.) The PCR court dismissed the proceeding without hearing on the basis that the claims were without merit. (Exh. W, Order 12/4/18.) Petitioner sought review by the Arizona Court of Appeals arguing: (a) error in the summary dismissal without an evidentiary hearing, both as to claims of ineffective assistance and newly discovered evidence. (Exh. X, PFR.) The Arizona Court of Appeals granted review, but summarily denied relief based on absence of an abuse of discretion or error of law. (Exh. Y, Mem. Dec. 11/21/19.) Petitioner sought review by the Arizona Supreme Court, which denied review. (Exh. Z, Mandate.)
Petitioner then filed a second PCR proceeding, raising claims of ineffective assistance of PCR counsel based on failure to raise additional claims of ineffective assistance of trial and appellate counsel, and related substantive claims. (Exh. BB, 2ndPCR Pet.) The PCR court found the substantive claims precluded for failure to raise them on direct appeal, and the claims of ineffectiveness without merit. (Exh. CC, Order 7/30/19.) Petitioner sought review by the Arizona Court of Appeals, arguing the merits of his claims and the failure to conduct an evidentiary hearing. (Exh. DD, Pet. Rev.) That court again granted review but summarily denied relief. (Exh. EE, Mem. Dec. 9/17/20.) Petitioner did not seek further state court review. (Exh. FF, Mandate.)
Petitioner then filed the present habeas Petition (Doc. 7) and Memorandum (Doc. 8), Respondents answered (Doc. 21), and Petitioner replied (Doc. 25). The undersigned reached tentative conclusions rejecting Respondents' assertions that Grounds 6A and 7A where non-cognizable state law claims, and assertions that Grounds 9A and 9B were procedurally barred. Respondents were directed to supplement their Answer regarding these claims. (Order 2/22/22, Doc. 27.) Respondents filed their Supplemental Answer (Doc. 30) and Petitioner filed his Supplemental Reply (Doc. 33).
III. APPLICATION OF LAW TO FACTS
A. NO WAIVER IN PCR COURT
Petitioner replies that various defenses were waived when the State failed to file responses in Petitioner's second PCR proceeding, including non-cognizability defenses, procedural default defenses, and substantive defenses. (See e.g. Reply, Doc. 25 at 3; Reply Memo., Doc. 26 at 4.) This argument is without merit.
Non-cognizability in a federal proceeding was not a valid defense in Petitioner's state proceeding. Non-cognizability is a limitation on the authority of the federal habeas court to grant habeas relief, not just a limitation on respondent's defenses to relief. Thus, these defenses would not have been appropriately raised in the state court. Moreover, such defenses are not waivable, either in the state proceeding nor even this proceeding.
Likewise, the procedural bar or procedural default in a federal proceeding was not a valid defense in Petitioner's state proceeding. Moreover, by nature the underlying state procedural bars were addressed in the state proceeding, and any waiver argument under state law was necessarily either rejected or waived by Petitioner in the state proceeding.
As for substantive defenses, Petitioner cites to and the undersigned knows of no authority allowing a federal habeas default judgement based on a failure to respond in the state court proceeding. Indeed, even where the default occurs in the federal court, the defenses are not lost. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (“The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment.”)
A default judgment is a sanction, and a sanction should be proportionate to a wrong. Releasing a wrongfully convicted prisoner or imposing on the state the cost and uncertainty of retrying him, perhaps many years after the offense, is apt to be a disproportionate sanction for the wrong of failing to file a timely motion for an extension of time. This thinking informs the principle that default judgments are disfavored in habeas corpus cases. Habeas corpus is a strong remedy and is therefore reserved... for serious rather than technical violations of rights. The prompt disposition of petitions for habeas corpus is highly desirable, especially given the writ's historic function of protecting the citizen against arbitrary detention, and at some point delay in the disposition of a petition for writ of habeas corpus caused by the government's wilfully refusing to file a response might infringe the petitioner's right to due process of law. Yet even when the case is nearing that point, the district court, rather than entering a default judgment, ordinarily should proceed to the merits of the petition, since if the petition has no merit the delay in disposing of it will in the usual case have caused no prejudice to the petitioner.Blietner vs. Wellborne, 15 F.3d 652 (7th Cir. 1994).
B. NON-COGNIZABLE CLAIMS - GROUNDS 3, 5C, 6C, 7C, 8B, 9B
Respondents argue Ground 3, 6A and 7A assert state law claims, and Grounds 4B, 5C, 6C, 7C, 8B and 9B assert claims of ineffective assistance in PCR proceedings, and that none of these claims are not cognizable on federal habeas review. Petitioner makes no effort in his Reply to identify a cognizable claim in the Grounds.
1. State Law Claims Not Cognizable - Grounds 3, 6A, 7A
A state prisoner is entitled to habeas relief under 28 U.S.C. § 2254 only if he is held in custody in violation of the Constitution, laws or treaties of the United States. Federal habeas relief is not available for alleged errors in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62 (1991); Middleton v. Cupp, 768 F.2d 1083 (9th Cir. 1985).
In ordering service and an answer, the Court did not make any construction of the Petition to identify a federal basis for these claims. (See Order 4/12/21, Doc. 10 at 2.)
In Ground 3 Petitioner alleges newly discovered evidence in support of his motion to suppress, and that the PCR court erred in dismissing this claim without a hearing. (Petition, Doc. 7 at “9”; Memorandum, Doc. 8 at “16.”) In his Reply Memorandum, Petitioner simply reiterates his allegations. (Doc. 26 at 2.) Petitioner identifies no federal constitutional right or federal law violated by the rejection of his claim of newly discovered evidence. Indeed, the Supreme Court has observed that “federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact.” Herrera v. Collins, 506 U.S. 390, 400 (1993). At most, federal law may recognize a claim of actual innocence as a matter of due process. See Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007). But Petitioner does not assert that his “newly discovered evidence” would establish his actual innocence of the crimes for which he was convicted, only that it would have allowed him to avoid conviction by suppressing evidence of his actual guilt.
This claim fails to adequately state a federal claim for relief.
In Ground 6A he alleges the trial court abused its discretion in denying counsel the opportunity to reply in writing on the motion to suppress. (Petition, Doc. 7 at “15”; Memorandum, Doc. 8 at “26.”) But he makes clear in his Memorandum that the federal basis for this claim is that the denial of a continuance to allow a reply amounted to the denial of his right to counsel. (Memorandum, Doc. 8 at “26” (citing United States v. Bowe, 221 F.3d 1183 (11th Cir. 2000) (discussing whether denial of continuance denied right to counsel)).) Liberally construed, the Petition and Memorandum adequately state in Ground 6A a claim that Petitioner's federal right to counsel was denied when a continuance to allow a written reply was not granted.
Although a Reply is not the place to state a claim, this construction is affirmed by Petitioner's arguments in his Reply Memorandum that this Ground asserts a claim of constructive denial of counsel in violation of the 5th, 6th and 14th Amendments. (Doc. 26 at 2.)
In Ground 7A Petitioner alleges: “The trial court[']s denial of counsel[']s line of questioning during trial violated Petitioner's constitutional rights.” (Petition, Doc. 7 at “17”.) In his Memorandum, Petitioner clarifies he references defense counsel's attempts to cross examine the arresting officer, and that this was a violation of his “5th Amendment.. .right to confront witness,” citing Davis v. Alaska, 415 U.S. 308 (1974) (6thAmendment confrontation right includes right of cross examination).
Although Petitioner references the 5th Amendment, and the Confrontation Clause is found in the 6th Amendment, this Court is required to liberally construe Petitioner's pro se pleading and apply the appropriate law if not referenced by the Petitioner. Laws, 351 F.3d at 924.
Petitioner again argues in his Reply Memorandum on the basis of Davis and related cases. (Doc. 26 at 3.)
Petitioner also argues for the first time in his Reply Memorandum that he has asserted a state law violation that amounted to a violation of due process. (Doc. 26 at 3 (citing Walker v. Engle, 703 F.2d 959 (6th Cir. 1983)).) But nothing in the Petition or its supporting Memorandum reflects such a claim. “The district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
The undersigned concludes that, liberally construed, Ground 7A adequately states a claim of a denial of Petitioner's 6th Amendment confrontation rights. See Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (liberal construction of pro se federal-court filings).
Therefore, only Ground 3 fails to state a cognizable federal ground for relief by relying solely on state law, and Grounds 6A and 7A state cognizable grounds. Ground 3 must be dismissed for failing to state a cognizable basis for relief.
2. PCR Ineffectiveness Not Cognizable - Grounds 4B, 5C, 6C, 7C, 8B and 9B
Petitioner's claims in Grounds 4B, 5C, 6C, 7C, 8B and 9B all assert claims of ineffective assistance of PCR counsel. “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i).
Petitioner attempts to rely on Martinez v. Ryan, 566 U.S. 1 (2012) to show these claims are cognizable. (Reply Memo, Doc. 26 at 3-4.) But Martinez carved out no exception to § 2254(i), only an exception to the rule that only constitutionally required counsel can establish cause to excuse a procedural default. “In short, while § 2254(i) precludes Martinez from relying on the ineffectiveness of his postconviction attorney as a ‘ground for relief,' it does not stop Martinez from using it to establish ‘cause.'” Martinez, 566 U.S. at 17.
Accordingly, these claims of PCR ineffectiveness are not cognizable.
3. Conclusion re Non-Cognizable Grounds
Based on the foregoing, Grounds 3, 4B, 5C, 6C, 7C, 8B and 9B must be dismissed as not stating cognizable grounds for habeas relief.
C. PROCEDURAL BAR/PROCEDURAL DEFAULT
1. Claims Procedurally Barred - Grounds 5A, 5B
Respondents argue Grounds 5A, 5B, 9A and 9B were procedurally barred in the state courts. (Answer, Doc. 21 at 18, 20.) “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011).
To ensure Petitioner a fair opportunity to address such defenses, the Court's Scheduling Order directed: (E) Any allegations of procedural default or application of an independent and adequate state ground shall include an indication of the specific state rule(s) and/or authorities alleged to bar the affected claim(s). (Order 4/14/21, Doc. 14 at 2.) Respondents have failed to identify the specific procedural bar applied. Nonetheless, the bars applied by the state courts are apparent from a review of their decisions, and Petitioner has nonetheless addressed them in his Reply and Reply Memorandum.
"[T]he mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: The state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Harris v. Reed, 489 U.S. 255, 261-62 (1989) (internal quotations omitted). The reliance need not be made explicit. Indeed, even where there is no reason given by the state court for its decision, and no lower or other reasoned decision to look through to, the habeas court must ascertain for itself if the unreasoned judgment rests on independent and adequate state grounds, taking into consideration such things as the form of the denial, the arguments submitted in opposition to the claims, and the state court's knowledge of the effect of an unreasoned decision. Hunter v. Aispuro, 982 F.2d 344 (9th Cir. 1992).
a. Grounds 5A, 5B - Continuances re Discovery
In Ground 5A, Petitioner asserts that the denial of a continuance to review discovery was a denial of due process under the 5th Amendment, citing inter alia U.S. v. Cronic, 466 U.S. 648 (1984) (denial of counsel at critical stage by denial of continuance). (Petition, Doc. 7 at “13”; Memorandum, Doc. 8 at 22-24.) In Ground 5B Petitioner argues that appellate counsel was ineffective for failing to raise this claim on appeal.
Respondents argue that Petitioner raised these claims in the second PCR Proceeding, and Ground 5A was explicitly barred on the basis that it could have been raised on direct appeal, and implicitly barred Ground 5B on the basis that it could have been raised in the first PCR. (Answer, Doc. 21 at 18.) Petitioner replies that the procedural bar should be excused. (Reply, Doc. 25 at 4.)
Indeed, Petitioner raised these claims in his second PCR proceeding, and they were procedurally barred. (See Exh. BB, 2nd PCR Pet. at 6-7.) Because the Arizona Court of Appeals issued a summary opinion adopting the PCR court's decision (see Exh. EE, Mem. Dec. 9/17/20), this Court evaluates the PCR court's decision (Exh. CC) as the “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). The state court rejected these claims as “precluded because it could have been raised on appeal,” (Exh. CC, Order 7/30/19 at 4), implicitly applying Arizona's preclusion (or waiver) bar for claims not previously presented, see Ariz. R. Crim. Proc. 32.2(a)(3).
b. Grounds 9A, 9B - Subpoenas of Taxi
In Ground 9A Petitioner argues that trial counsel was ineffective for failing to subpoena service records from the cab company. (Petition, Doc. 7 at 21; Memorandum, Doc. 8 at 33.) In Ground 9B, Petitioner argues PCR counsel was ineffective for failing to raise this claim. (Id.) Respondents argue these claims were procedurally precluded in Petitioner's 2nd PCR proceeding. (Answer, Doc. 21 at 20.)
Indeed, Petitioner raised these claims in his second PCR proceeding. (See Exh. BB, 2nd PCR Pet. at 8.) The PCR court rejected them as “already raised in the Defendant's ‘of right' Petition for Post-Conviction Relief.” (Exh. CC, Order 7/30/19 at 3.)
As to Ground 9A, this was an implicit application of Arizona's preclusion bar for claims “finally adjudicated on the merits” in a previous proceeding, Ariz. R. Crim. Proc. 32.2(a)(2). Indeed, Petitioner had raised his claim in Ground 9A with regard to trial counsel in the earlier proceeding. (Exh. T, 1st PCR Pet. at 6.) The trial court had rejected the claim on the merits. (Exh. W, Order 12/4/18 at 4.)
Thus, while the 2nd PCR court applied a procedural bar, that bar simply recognized the fair presentation and exhaustion by decision of the claim in the 1st PCR proceeding. Such a bar does not erase the prior exhaustion, and does not bar federal habeas review. See Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.1996); and Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003).
On the other hand, Petitioner did not and could not have raised in his first PCR proceeding Ground 9B's claim of ineffectiveness of PCR counsel in that first PCR. Accordingly the 2nd PCR court's rejection of this claim “as already raised” was on the merits, i.e. that PCR counsel had in fact pursued the claim. However, as discussed above in Section III(A), the claim of ineffective assistance of PCR counsel is not cognizable in this federal habeas proceeding.
Accordingly, only Petitioner's claims in Grounds 5A and 5B were barred on independent and adequate grounds sufficient to bar habeas review.
c. Sua Sponte Consideration Permissible
Petitioner argues that the state courts were not entitled to raise the state bar sua sponte, citing State v. Thompson, 120 Ariz. 202, 584 P.2d 1193 (App. 1978). (Memorandum, Doc. 8 at 25.) Indeed, that case held: “However, as that defense must be pleaded and proved by the State, Rule 32.2(d), this court is not at liberty to base its decision on preclusion where it has not been pleaded.” Thompson, 120 Ariz. at 203, 584 P.2d at 1194. But Thompson has not been good law since at least the 2000 Amendments to Rule 32.2, which currently provide: “At any time, a court may determine by a preponderance of the evidence that an issue is precluded, even if the State does not raise preclusion.” Ariz. R. Crim. Proc. 32.2(b). See State v. Weeks, No. 2 CA-CR 2013-0032-PR, 2013 WL 4511315, at *1 (Ariz.Ct.App. Aug. 22, 2013).
d. Independence and Adequacy
Petitioner proffers nothing to suggest Rule 32.2(a)(3) is not independent and adequate. See Bennett v. Mueller, 322 F.3d 573, 584-585 (9th Cir.2003) (initial burden of proof on inadequacy on petitioner). Indeed, the federal courts have concluded: “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).
2. No Procedural Default - Grounds 6A, 7A
Respondents argue Grounds 6A and 7A were not fairly presented to the Arizona Court of Appeals as federal claims, and are now procedurally defaulted and must be dismissed. (Supp. Ans, Doc. 30 at 7, 9-10.) Petitioner argues they were fairly presented to the Arizona Court of Appeals in his second PCR proceeding. (Supp. Reply, Doc. 33 at 2-3.)
Respondents' procedural default defense is premised on Petitioner's failure to fairly present Grounds 6A and 7A to the state courts. Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
a. Ground 6A Fairly Presented
In Ground 6A Petitioner alleges that by denying counsel the opportunity to reply in writing on the motion to suppress, he was constructively denied his federal right to counsel. (Petition, Doc. 7 at “15”; Memorandum, Doc. 8 at “26” (citing United States v. Bowe, 221 F.3d 1183 (11th Cir. 2000) (discussing whether denial of continuance denied right to counsel)).)
Although Petitioner raises a federal claim in these proceedings, he must have fairly presented the same federal claim to the state courts. Failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law,” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9thCir. 2005), or by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).
In support of his contention that this claim was fairly presented in his second PCR proceeding, Petitioner points to pages 12 through 19 of his Petition for Review in that proceeding. (Supp. Reply, Doc. 33 at 4.) The referenced pages argue that Petitioner was constructively denied counsel when the trial court refused time for counsel to reply on the motion to suppress. In support of this argument Petitioner cited to the 6th and 14thAmendments, as well as U.S. v. Morris, 470 F.3d 596, 601-602 (6th Cir. 2006) and U.S. v. Cronic, 466 U.S. 648, 659 n. 25 (1984). (Exh. DD. Pet. Rev. at 12.) In Cronic, the Court applied precedent finding that the right to counsel had been constructively denied where counsel was appointed so late that made it unlikely any lawyer could provide effective assistance, making a showing of actual prejudice unnecessary, but concluded that the appointment for Cronic (25 days before trial) did not meet that threshold requirement. In Morris, the Sixth Circuit applied Cronic to a state court practice of appointing counsel shortly before a critical state of the case, such that even competent counsel very likely not provide constitutionally adequate assistance.
Respondents fail to explain how the citations to Cronic and Morris were insufficient to alert the Arizona Court of Appeals to Petitioner's federal claim of the constructive denial of assistance of counsel by the refusal of time for a reply.
Respondents also assert no such federal claim was raised in the PCR court. (Supp. Ans., Doc. 30 at 7.) Indeed, presentation to the Arizona Court of Appeals for the first time is not sufficient to exhaust an Arizona state prisoner's remedies. "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). In Casey v. Moore, 386 F.3d 896 (9th Cir. 2004), the court reiterated that to properly exhaust a claim, "a petitioner must properly raise it on every level of direct review." Id. at 916.
Academic treatment accords: The leading treatise on federal habeas corpus states, “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.”Id. (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998) (emphasis added)).
But here, Petitioner argued to the PCR court that that the denial of a continuance on the motion to suppress was a denial of the right to counsel, citing U.S. v. Bowe, 221 F.3d 1183 (11th Cir. 2000) and Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985). (Exh. BB, 2nd PCR Pet. at 17.) Bowe recognized that “[i]mplicit in [the] right to counsel is the notion of adequate time for counsel to prepare the defense.” 221 F.3d at 1191. Walberg applied Cronic's presumption of prejudice where court interfered in counsel' ability to represent the defendant by intimidation by the judge for counsel's purportedly overly strenuous defense. Respondents proffer no reason why this was not sufficient to fairly present Petitioner's federal claim under Cronic.
Based on the foregoing, the undersigned concludes that the claim in Ground 6A was fairly presented to the state courts, was properly exhausted, and is not procedurally defaulted.
b. Ground 7A Fairly Presented
In Ground 7A Petitioner alleges the trial court's denial of defense counsel's attempts to cross examine the arresting officer was a violation of his 6th Amendment rights to confront witnesses.
Respondents argue that Petitioner did not raise a federal confrontation claim in his second PCR proceeding, either to the PCR court or the Arizona Court of Appeals, and his state remedies are now procedurally defaulted. (Supp. Ans., Doc. 30 at 9-10.) Petitioner replies by pointing to sections of his 2nd PCR petition, and his petition for review in that proceeding. (Supp. Reply, Doc. 33 at 6-7.)
Indeed, to the PCR court Petitioner argued, inter alia:
The court unfairly restricted the defense[']s cross examination of a key prosecution witness. Davis v. Alaska, 415 U.S. 308 (1974). Material and prejudicial evidence was introduced without affording the petitioner the opportunity for confrontation and cross examination. Pointer v. Texas, 380 U.S. 400 (1965). And besides being denied, the opportunity to present a defense, trial counsel's line of questioning went to credibility (10/4/16 Jury Trial Day 2 page 40 lines 19-21). The confrontation right was designed to promote truth finding function of trial. Craig, 497 U.S. at 845. See also Ky. v. Spencer, 48 2 U.S. 830, 737 (1987).(Exh. BB, 2nd PCR Pet. at 19.) To the Arizona Court of Appeals Petitioner argued:
the court abused its discretion in dying the cross examination of Officer Holstrom in violation of the U.S. Constitution 5th, 6th & 14thAmendments denying Petitioner the effective assistance of counsel and due process and a fair trial. Davis v. Alaska, 416 U.S 308, 31516, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) right to confront witness includes right to impeach on cross examination.(Exh. DD, Pet. Rev. at 13.)
Central to this argument was Petitioner's reliance on Davis, where the Court opined:
The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. ‘Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.' Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965).Davis, 415 U.S. at 315. Respondents proffer no explanation why these passages were not sufficient to fairly present Petitioner's 6th Amendment confrontation claim. The undersigned finds they were.
c. Summary re Procedural Default
Based on the foregoing, the undersigned concludes that none of Petitioner's claims for relief have been procedurally defaulted by failure to fairly present them to the state courts.
3. Cause and Prejudice
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
Petitioner argues that this Court should find cause to excuse his procedural bars, but generally fails to proffer any cause for this Court to do so. (Reply, Doc. 25 at 4.) Petitioner does argue that the State's failure to respond to his second PCR petition constitutes cause for failing to fairly present his claims. Apparently, Petitioner's rationale is that had the State responded, he would have been able to then assert his federal claims in a reply. But Petitioner fails to explain how the lack of response precluded him from raising his federal claims in the first instance.
The undersigned finds no cause to excuse the procedural bars applied to his claims. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991).
Martinez v. Ryan, 455 U.S. 1 (2012) recognizes ineffective assistance of PCR counsel as cause to excuse a procedural default. However, that applies only to PCR counsel's ineffectiveness as to claims of ineffective assistance of trial counsel. Ground 5A is not based on ineffective assistance, and Ground 5B argues only ineffective assistance of appellate counsel. While ineffective assistance of appellate counsel may itself constitute cause to excuse a procedural default of a substantive claim, that claim of ineffectiveness must itself have been properly exhausted. Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). Petitioner fails to show he properly exhausted a claim of appellate ineffectiveness with regard to the claim in Ground 5A.
4. Actual Innocence
Failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). A petitioner asserting his actual innocence 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 v. Delo, 513 U.S. 298, 324 (1995). Petitioner fails to proffers such evidence of his actual innocence.
As discussed hereinabove in Section III(B)(1), Petitioner does assert that newly discovered evidence would have allowed him to avoid conviction by suppressing evidence of his actual guilt. But in making a finding of actual innocence, the federal habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial. House v. Bell, 547 U.S. 518, 538 (2006). Thus any evidence suppressible under the exclusionary rule would still be considered in evaluating actual innocence.
Accordingly, Petitioner's procedurally barred claims in Grounds 5A and 5B must be dismissed with prejudice.
D. STANDARDS OF REVIEW
While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court,” 28 U.S.C. § 2254(d) and (e), not every error justifies relief. Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). See Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013) (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits).
Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error. This statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1). The Supreme Court has instructed that a state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or 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.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). To show an unreasonable application, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).
In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
E. LACK OF RESPONSE IN STATE COURTS
Petitioner makes assertions with respect to several claims that the State's failure to respond to his second PCR petition amounted to a denial of due process because it denied him a full and fair opportunity to litigate his claims. (See e.g. Supp. Reply, Doc. 33 at 45.) But Petitioner did not raise such a claim in his Petition, and the Court need not consider it. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
Moreover, Petitioner fails to point to any authority that a response by an opponent is required for due process. The undersigned has found none.
There are certainly due process related risks inherent in sua sponte rulings, and courts have found that for some specific decisions the risks are high or obvious enough that a prior opportunity to be heard on defenses must be allowed. See e.g. Michael J. Donaldson, Justice in Full Is Time Well Spent: Why the Supreme Court Should Ban Sua Sponte Dismissals, 36 Quinnipiac L. Rev. 25 (2017); Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002); Milani and Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245 (2002). Consequently, courts have fashioned rules mandating opportunities to respond on certain issues as a matter of judicial administration. For example, a federal habeas court may raise certain defenses to a petition sua sponte but must allow the petitioner to be heard. See e.g. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998) (exhaustion); and Day v. McDonough, 547 U.S. 198, 209 (2006) (statute of limitations). In those situations, however, what is generally at issue is not the claim in chief on which the petitioner bears the burden, but an affirmative defense which the respondent must raise and support, and thus need not have been addressed in the petition.
Further, Petitioner fails to explain why a response was necessary for him to have a fair opportunity to litigate his claims. The onus is upon a complainant/petitioner/movant to adequately establish a prima facie basis for the relief requested in his original complaint/petition/motion. Thus, Arizona's rules permit the sua sponte dismissal of a PCR petition where the petition fails to state a colorable claim. See Ariz. R. Crim. Proc. 32.6(d)(1) (now 32.11(a)); State v. Amaral, 239 Ariz. 217, 219, 368 P.3d 925, 927 (2016). Similarly, the federal habeas rules allow dismissal of habeas petitions without a response or reply.
The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order. In every case, the clerk must serve a copy of the petition and any order on the respondent and on the attorney general or other appropriate officer of the state involved.Rule 4, Rules Governing Section 2254 Cases.
At most, Petitioner lost an opportunity to reply in support of his claims. But a reply is generally limited to rebutting defenses raised in the answer or response, and the lack of response left nothing to which Petitioner needed to reply. Moreover, to justify relief on such a due process claim, Petitioner must show the process applied in the PCR court resulted in a denial of due process. Petitioner fails to explain why his opportunities to seek reconsideration or further review of the sua sponte dismissal were insufficient to insure such due process.
F. INEFFECTIVENESS AT TRIAL - 1, 2, 4A, 9A
1. Applicable Law
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000).
An objective standard applies to proving such deficient performance, and requires a petitioner to demonstrate that counsel's actions were “outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense.” United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting Strickland, 466 U.S. at 687-90). The reasonableness of counsel's actions is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689.
2. Ground 1 - IAC re Search
In Ground 1, Petitioner argues that trial counsel was ineffective for failing to adequately challenge the search, advising Petitioner that his parole status made it pointless. (Petition, Doc. 7 at “6”.) Petitioner argues the search was not consensual, and the cab driver was seized when her request to exit the vehicle was denied. He argues the state court's rejection of this claim erred in finding the cab driver's consent to search validly extended to the area where Petitioner was sitting. He argues there was insufficient evidence of consent. He argues the search was the fruit of the poisonous tree of the improper seizure of the cab driver. He argues the state court's findings were unreasonable because the defense was not allowed to present evidence in support of the motion. (Memorandum, Doc. 8 at “10”-“14.”)
Respondents argue that the PCR court's rejection of this claim based on the lack of deficient performance and lack of prejudice must be sustained because the motion to suppress would have, in any event, been denied. (Answer, Doc. 21 at 27-28.)
In disposing of this claim, the PCR court (the last reasoned decision) opined:
The defendant claims trial counsel, Adam Zickerman, rendered ineffective assistance of counsel by not challenging the search of the vehicle. Mr. Zickerman did file a Motion to Suppress challenging the stop of the vehicle. The State, in their response, did address the legitimacy of the search. However, at the Evidentiary Hearing held on September 27, 2016, Mr. Zickerman advised the Court he was not challenging the search. The testimony at the Evidentiary Hearing showed that Bullhead City Police Officer Robin Holstrom stopped a taxi cab for having an inoperable license plate lamp. Officer Holstrom identified the passenger as the defendant, Drew Michael Witzig, who was on parole and had an outstanding warrant for a parole violation. Officer Holstrom also testified that Mr. Witzig was moving his feet around under the front passenger seat. After Mr. Witzig was taken into custody, Officer Holstrom retrieved Mr. Witzig's personal property from the taxi cab, a black lap top bag, and received permission from the taxi cab driver, Rebecca Quintana, to look under the front passenger seat. Officer Holstrom discovered approximately 3 ounces of methamphetamine in the taxi cab. Had the defendant challenged the search, the Court would have still denied the Motion to Suppress. The defendant alleges probable cause did not exist to search the vehicle and the search could not have been incident to arrest pursuant to Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009). However, after reviewing the testimony at the Evidentiary Hearing, the Court would have found that it was permissible for Officer Holstrom to retrieve Mr. Witzig's personal property for safe keeping from the taxi cab after his arrest, and consent was granted by the taxi cab driver for the officer to search the immediate area where the defendant was a passenger, which satisfies the requirements of the fourth amendment. The Court finds Ms. Quintana's affidavit attached to the Petition for Post-Conviction Relief to be unpersuasive. Not recalling granting consent is not tantamount to a denial of granting consent. Based on Officer Holstrom's testimony, which the Court found persuasive, the Court would have found that Officer Holstrom was granted permission to search the area of the taxi cab where the defendant was seated. The Court finds the defendant has failed to establish a colorable claim. The defendant next alleges that trial counsel rendered ineffective assistance(Exh. W, Order 12/4/18 at 2-4.)
Petitioner replies that he has shown the stop was not justifiable on the purported basis of an inoperable license plate light (citing proffered affidavits from cab company employees of no repairs), no valid consent was given (because of the purported illegal seizure of the driver), and a hearing should have been allowed because the PCR court could not reasonably conclude the motion to suppress would have been without merit. (Reply Memo, Doc. 26 at 7-10.)
Because the state court's decision was on the merits, the limitations of 28 U.S.C. § 2254(d) apply. Plaintiff fails to meet that standard.
Motion Futile
The state court properly relied upon the futility of the motion to suppress to reject the claim of ineffective assistance. It is clear that the failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996). “The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Basis for Stop
Plaintiff contends the state court's finding that the stop was on the basis of the inoperable light was unreasonable, citing the lack of an evidentiary hearing in the PCR court.
A state court finding of fact may be unreasonable within the meaning of 28 U.S.C. § 2254(d) if the fact-finding process itself is defective, including situations where the state court made “‘evidentiary findings without holding a hearing' to give the petitioner ‘an opportunity to present evidence.'” Kipp v. Davis, 971 F.3d 939, 953 (9th Cir. 2020) (quoting Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)). But, a “state court's decision not to hold an evidentiary hearing does not render its fact-finding process unreasonable so long as the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question.” Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). Thus, the failure to hold an evidentiary hearing may be unreasonable if there was material evidence available which could have altered the outcome, but not introduced due to the lack of hearing, and the state court was aware of such available evidence. “The ultimate question, however, is whether an appellate court would be unreasonable in holding that an evidentiary hearing was not necessary in light of the state court record.” Hibbler, 693 F.3d at 1148.
Petitioner did have an evidentiary hearing in the trial court on the underlying motion to suppress. But the relevant question now is whether the PCR court acted unreasonably in denying him an evidentiary hearing on his ineffectiveness claim (not whether an adequate hearing was allowed in the suppression hearing). Petitioner fails to suggest what material evidence could have been introduced at such a hearing that was not already before the PCR court.
Petitioner does proffer testimony from employees of the cab company, supported by a July 23, 2018 affidavit of one employee and a December 6, 2016 written statement from another, both proffered to show the license plate light was operable. But the state court's rejection of the claim did not depend upon the propriety of the original stop, but rather the propriety of the search of Petitioner upon his warranted arrest and the consent of the driver.
The Affidavit is from a taxi driver (Newman) who asserts a belief that at the time of arrest the taxi was “in excellent working condition,” and after Petitioner's arrest he inspected and found “all of the lights and blinkers were working.” (Exh. P-A.) The statement is from an employee (Garcia) asserting that in January, 2016 cabs were inspected daily for mechanical problems, and he would have been aware of any problems, and at “no time did any taxi require a license plate light to be replaced.” (Exh. P-B.) This statement is not made under oath or penalty of perjury, but included a notary's acknowledgement. The Newman Affidavit was attached to the PCR Petition (Exh. T) as Attachment A.
Even if the state court had relied on the propriety of the original stop, it is not clear that evidence of an operable lamp would have been determinative. A traffic stop can properly be made whenever an officer has reasonable suspicion of a violation, that is, a particularized and objective basis for suspecting the particular person stopped of breaking the law. Heien v. North Carolina, 574 U.S. 54, 60 (2014). “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at 60-61. See U.S. v. Miguel, 368 F.3d 115) (9th Cir. 2004), overruled on other grounds, U.S. v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (good faith mistake whether registration expired did not invalidate reasonable suspicion to support stop). Under this rubric, it would have been sufficient that it reasonably appeared to the officer, at the time of the stop, that the light was not operational. Moreover, Petitioner proffers no direct evidence that at the time of the stop the light was operational. For example, the light may have been temporarily not operating (e.g. because the bulb was loose, etc.) or may have been repaired (e.g. by the driver pulled over with Petitioner) before the company employees could have seen it non-operational.
The presence or absence of reasonable suspicion may have been necessary to an arrest of the driver of the taxicab. But the warrant for arrest of Petitioner on a parole violation was itself sufficient to justify the stop of Petitioner. Petitioner cannot rely on a violation of the driver's rights. “The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States, 394 U.S. 165, 171-72 (1969).
Thus, even if this Court could find an unreasonable determination of the facts with regard to the inoperable license plate, upon de novo review Petitioner's challenges to the traffic stop (and ensuing consent to search) would have to be rejected. For this reason alone, Petitioner's claims in this Ground 1, as well as the related claims in Ground 2 (IAC re uncalled witnesses), 4A (IAC re unpresented evidence), and 9A (IAC re taxi records) must be denied.
Insufficient Evidence of Consent
Petitioner argues that clear and convincing evidence of consent was required, and such evidence did not exist in light of the taxi driver's affidavit. (Memorandum, Doc. 8 at “12.”) Under Federal law, the proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005). Conversely, under Arizona law, the State bears the burden of proof. It is, however, only a “burden of proving by a preponderance of the evidence.” Ariz. R. Crim. Proc. 16.2(b)(1). Even so, Petitioner fails to provide any basis to conclude that the state court made an unreasonable determination in finding consent was given. Petitioner points to the Affidavit of the taxi driver, but fails to address the state court's rejection of it as espousing only a lack of memory of consent rather than a denial of having given consent. (See Exh. P-C, Quintana Affid. at 2 (“I do not recall ever giving verbal consent for the police to search the taxi.”) The undersigned does not find unreasonable the state court's decision to rely on the affirmative memory of the officers rather than the lack of memory of the taxi driver.
It is true that a federal claim of ineffective assistance of counsel can be founded upon counsel's failure to pursue a defendant's rights under state law. However, the undersigned understands Petitioner's claim in Ground 1 to be based on the failure of counsel to pursue a federal “4th Amendment claim” in a motion to suppress (Memorandum, Doc. 8 at 10”), and not some related state law basis for suppression. Even so, the undersigned assumes arguendo that Arizona's allocation of the burden of proof would apply to such a claim, and thus is appropriate for consideration in connection with Petitioner's claims of failure to pursue a motion to suppress based on his federal rights.
Petitioner protests an evidentiary hearing should have been granted to address this issue. But he proffers nothing which could have been adduced at such a hearing (beyond a repetition of the driver's assertions in her affidavit) to support his claim. The state court was not unreasonable in resolving this issue without a hearing.
Invalid Consent
The state court further relied on the driver's consent to search. Petitioner argues that this was erroneous because the driver's consent was invalid because she had been unlawfully seized by the officer (purportedly both in the original stop reasonable suspicion, and when she was asked to exit the car without probable cause). But this reasoning relies upon Petitioner's assertions of the driver's Fourth Amendment rights. “No rights of the victim of an illegal search are at stake when the evidence is offered against some other party.” Alderman, 394 U.S. at 174.
Authority to Consent
Petitioner further argues that the cab driver's consent could not validly extend to the area where Petitioner was sitting. But Petitioner fails to support this argument with Supreme Court law. The Supreme Court has long held that a search may be conducted based on consent “obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). At least the Third, Fifth, Eighth, and Eleventh Circuits have thus explicitly held that a driver of an automobile (regardless of ownership) has authority to consent to the entirety of the vehicle, even if the vehicle is occupied by other passengers. See United States v. Morales, 861 F.2d 396, 399 (3d Cir. 1988); United States v. Crain, 33 F.3d 480, 484 (5th Cir. 1994); United States v. Cox, 992 F.3d 706, 711 (8th Cir. 2021); and United States v. Dunkley, 911 F.2d 522, 526 (11th Cir. 1990). See also Amendola, et al., Right of owner, operator, or person in possession and control of vehicle to consent to search, 79 C.J.S. Searches § 166 (2022). See also United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (upholding consent by one user to search of jointly used vehicle).
Ground 1 is without merit and must be denied.
3. Ground 2 - IAC re Uncalled Witnesses
In Ground 2, Petitioner argues that trial counsel was ineffective for failing to present testimony of the taxi company employees Newman and Garcia refuting the claim of an inoperable license plate light. (Petition, Doc. 7 at “8”; Memorandum, Doc. 8 at 1516.) Respondents argue that the state court properly relied upon counsel's efforts to subpoena Newman to find a lack of deficient performance, and to find a lack of prejudice based upon the persuasiveness of the officer's testimony of an inoperable light. (Answer, Doc. 21 at 28-30.) The ruling of the PCR court (the last reasoned decision on this claim) opined:
The defendant next alleges that trial counsel rendered ineffective assistance of counsel by not securing the necessary testimony at the evidentiary hearing regarding the working lights of the taxi cab. Attached to the defendant's petition is an affidavit from Jerry Newman who attests that after Mr. Witzig's arrest he found all the lights and blinkers to be properly workings Trial counsel did subpoena Mr. Newman for the Evidentiary Hearing. Clearly, trial counsel's performance did not fall below an objective standard of reasonableness. Mr. Newman did not comply with the subpoena. The remedy would have been to request a continuance of the Evidentiary Hearing and to request a warrant for Mr. Newman. However, the Court could not have continued the Evidentiary Hearing due to the jury trial commencing six (6) days later. Trial counsel render competent representation by issuing a subpoena for Mr. Newman. Further, had Mr. Newman testified consistently with his affidavit, the Court would not have granted the Motion to Suppress. The Court found Officer Holstrom to be credible when she clearly noticed, at the relevant time, that the license plate light was inoperable which provided a legitimate reason for the traffic stop.(Exh. W, Order 12/4/18 at 4.)
Petitioner replies that counsel should have sought a continuance when Newman failed to appear, and the state court fails to take account of Garcia's statement, no strategic choice is shown, and that resolving the factual disputes without an evidentiary hearing was unreasonable. (Reply Memo, Doc. 26 at 10-11.)
Deficiency Regarding Newman
Petitioner complains counsel did not seek a continuance to have Newman appear. But Petitioner proffers nothing to show why the state court erred in concluding that the trial court “could not have continued the Evidentiary Hearing.” Thus, such a request would have been futile and failure to make it would not have constituted ineffective assistance. Rupe, 93 F.3d at 1445.
Garcia Statement
In addressing this claim, the state court referenced only the affidavit from Newman, and did not address the proffered, unsworn statement of Garcia. However, in the next paragraph, the state court opined: “Had Mr. Newman and Mr. Garcia testified at the Evidentiary Hearing consistent with their affidavits, the Court would not have changed its decision in denying the Motion to Suppress.” For the reasons discussed hereinabove with regard to Ground 1, this was reasonable, particularly in light of the generic nature of Garcia's proffered statement that at “no time did any taxi require a license plate light to be replaced.” (Exh. P-B, Garcia Statement.)
Lack of Evidentiary Hearing
In rejecting this claim, the state court assumed Newman would have “testified consistently with his affidavit” and still found the motion to suppress would have been futile. Petitioner proffers nothing to suggest that Newman's testimony would have been different from his Affidavit, nor somehow more persuasive. This was not a situation where Newman was an eyewitness observing the taxi at the time of the traffic stop. Rather, Newman's assertion was merely that when he, at some subsequent time, examined the vehicle all the lights were working. (Exh. P-A, Newman Affid. at 2.) Such limited testimony would leave open a variety of possible explanations which would not preclude a finding of the truthfulness of the officer's testimony of an inoperable light, e.g. an intermittent outage, an intervening adjustment, replacement or repair by a driver, etc. Under these circumstances, the state court could reasonably conclude that no evidentiary hearing was necessary, and that a continuance to introduce Newman's testimony would have been futile, and not ineffective assistance. Similarly, Garcia's statement would have left open a variety of reasonable bases to still find credible the officer's testimony of an inoperable light, and Petitioner posits nothing to have been added by live testimony from Garcia.
Moreover, for the reasons discussed hereinabove with regard to Ground 1, any error in the stop of the vehicle provided no basis for Petitioner to suppress the evidence obtained against him.
Ground 2 is without merit and must be denied.
4. Ground 4A - IAC re Unpresented Evidence
In Ground 4A, Petitioner argues that trial counsel was ineffective in failing to adequately impeach the arresting officer with various evidence tending to show the traffic stop was actually conducted in expectation of arresting Petitioner on a warrant, and not on the basis of an inoperable license plate light. He argues that the state court's resolution of this claim without an evidentiary hearing was unreasonable. (Petition, Doc. 7 at 11; Memorandum, Doc. 8 at 17-22.) Respondents argue the state court's rejection of this claim survives deferential review. (Answer, Doc. 21 at 30-31.)
In its decision in the second PCR proceeding (the last reasoned decision), the PCR court rejected this claim on the following basis:
In denying the defendant's Motion to Suppress, the Court concluded that Officer Holstrom's testimony was credible when she described the basis for the traffic stop, arrest of the defendant, and subsequent search of the taxi cab. The defendant has not presented anything which now causes to Court to question Officer Holstrom's credibility. The Court finds the defendant has failed to present a colorable claim for relief.(Exh. CC, Order 7/30/19 at 4.)
Petitioner replies that an evidentiary hearing was necessary to resolve the factual disparities between his version and the arresting officer's version on the basis for the stop. (Reply Memo, Doc. 26 at 11-12.)
Petitioner proffers nothing to show that attacking the credibility of the arresting officer on the basis for the stop would have altered the outcome at trial. For example, he does not suggest it would show the drugs and paraphernalia were not prohibited items, nor that he did not possess them.
Rather, his focus is on the impact on the motion to suppress. His theory is that the unpresented evidence would have shown the stop was pretextual, motivated by a belief that Petitioner was in the taxi and subject to an arrest warrant, and that there was no inoperable tail light. For the reasons discussed hereinabove regarding Grounds 1 and 2, any impropriety in the stop would not have resulted in suppression of the evidence against Petitioner.
Moreover, to the extent that Petitioner could have shown the stop on the basis of the inoperable light was pretextual, the outcome would not have been different. As recognized by the Arizona Court of Appeals in Petitioner's direct appeal (Exh. Q, Mem. Dec. 12/5/17 at ¶ 11), the “constitutional reasonableness of traffic stops [do not depend] on the actual motivations of the individual officers involved.” Whren v. United States, 517 U.S. 806, 813 (1996). Thus, the Court has held “that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search,' and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches.” Id. at 812-13 (quoting United States v. Robinson, 414 U.S. 218 (1973), citations omitted).
The state courts' finding that the officer's credibility on the basis for the stop would not, in any event, have been shaken was not unreasonable. The taxi employees' testimony offered only indirect inferences on the license plate light, and the evidence from other officers, etc. tending to show the arresting officer was on the lookout for Petitioner in a taxi was similarly circumstantial.
Finally, Petitioner fails to point to anything to be added in an evidentiary hearing beyond the proffers in his briefs, to show that resolving the matter without an evidentiary hearing was unreasonable.
Ground 4A is without merit and must be denied.
5. Ground 9A - IAC re Taxi Records
In Ground 9A, Petitioner argues that trial counsel was ineffective for failing to subpoena the cab company service records, which could have refuted the officer's claim of an inoperable license plate lamp, eliminating the purported basis for the stop of the taxi. He argues the state court's determination of the facts were unreasonable because it openly ignored the potential evidence, its decision was against the clear and convincing weight of the evidence, and no evidentiary hearing was held. (Petition, Doc. 7 at 21; Memorandum, Doc. 8 at 33-35.)
Respondents argue that Petitioner fails to show counsel was ineffective because counsel subpoenaed Newman to testify at the hearing on the motion to suppress, and the PCR court's decision in the first PCR proceeding on the claim in Ground 2 that evidence (in the form of Newman's testimony) that there were no cab repairs would not have altered the outcome on the motion to suppress. Respondents argue that such decision survives deferential review under § 2254(d). (Supp. Ans., Doc. 30 at 11-13.)
Petitioner replies that his claim in Ground 9A was not presented in his first PCR proceeding, but in his second PCR proceeding. Petitioner argues the rejection of this claim was unreasonable because counsel's failure to investigate the cab company records was unreasonable, as was his decision to not present the records. Petitioner argues that the PCR court's rejection of this claim on the basis that he had not shown prejudice was unreasonable because Petitioner was not allowed an evidentiary hearing on this claim. (Supp. Reply, Doc. 33 at 7-12.)
Indeed, Petitioner raised this claim in his Second PCR proceeding. It was rejected as having been decided on direct appeal and in the first PCR proceeding. (See supra Section III(B)(1)(b) discussing exhaustion of this claim.) However, the PCR court went on to reject this claim on the merits, reasoning:
Further, the defendant has not demonstrated how service records, if any, would have changed the result of the Court's denial of the Motion to Suppress. The Court reiterates that the Court finds Officer Holstrom's observation, at the relevant time, to be credible.(Exh. CC, Order 7/30/19 at 6.) This is the last reasoned decision on the merits of the claim in Ground 9A.
Petitioner has never obtained nor presented the referenced records, and thus he is merely speculating that they actually existed and that they would have supported his claims. A habeas petitioner may not leave a court to speculate what evidence a purportedly deficient investigation would have discovered. In order to prevail on an allegation that defense counsel conducted an insufficient investigation resulting in ineffective assistance, the petitioner must show specifically what that investigation would have produced. A petitioner may not simply speculate about what a witness's testimony would be or evidence would show, but must adduce evidence to show what it would have been, e.g. through testimony or witnesses. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991). At best, Petitioner asserts that repair records were required. He offers nothing to show that they were actually prepared and available at the time counsel would have investigated, nor that they actually reflected no light repairs on the particular taxi.
Further, for the reasons discussed hereinabove regarding Ground 1, if considered de novo, the undersigned would find this claim without merit on the basis that in light of the warrant for Petitioner's arrest, the basis for the stop was irrelevant, and any resulting defect in the driver's consent was not Petitioner's claim to assert.
Finally, for the reasons discussed hereinabove regarding Grounds 2 and 4A, the decision to rely on the credibility of the officer regarding her observations at the time of the stop was not unreasonable, even if other evidence might show that at other times the license plate light was operational. Accordingly, neither the credibility decision itself nor the decision to forego an evidentiary hearing was unreasonable.
Ground 9A is without merit and must be denied.
G. GROUND 6A - DENIAL OF CONTINUANCE
In Ground 6A, Petitioner argues that he was constructively denied counsel when the court denied the defense a continuance to allow a written reply to the prosecution's response on the motion to suppress which had been served at the hearing. (Petition, Doc. 7 at 15; Memorandum, Doc. 8 at 25.) Respondents argue this claim survives deferential review under § 2254(d) because there is no Supreme Court authority on denial of a continuance as a constructive denial of counsel for which prejudice need not be shown, the trial court permitted a recess and counsel made an oral reply, and Petitioner fails to show additional time for a written reply would have had any effect. (Supp. Answer, Doc. 30 at 6-9.) Petitioner replies that Bell v. Cone, 535 U.S. 685 (2002) recognizes that a denial of a continuance can amount to a constructive denial of counsel subject to the presumed prejudice under Cronic, and the failure to allow the ordinary 10 days for a reply to permit research and a written response would preclude any counsel from rendering effective assistance. He further argues actual prejudice is shown.
As discussed hereinabove in Section III(B)(2), this claim was raised in Petitioner's second PCR proceeding. The PCR court's ruling (the last reasoned decision) did not explicitly address the federal claim, but did address a related state law (abuse of discretion) and ineffective assistance of counsel claim. The court opined:
3. The Court denied a Motion to Continue and appellate counsel and postconviction relief counsel failed to raise this claim.
The denial, or granting, a Motion to Continue is within the discretion of the trial court. This issue is precluded because it could have been raised on appeal. Further, the defendant has not convinced the Court that is was an abuse is discretion to deny the Motion to Continue. Therefore, the defendant has failed to present a colorable claim for relief.
4. Appellate counsel and post-conviction relief counsel were ineffective for failing to raise a claim regarding the State filing a late response to the Motion to Suppress.
The defendant. has failed to state a colorable claim for relief regarding this issue. The Court could not continue the Evidentiary Hearing because the jury trial was scheduled to begin within a few days. Trial counsel had an opportunity to read State's response prior to the beginning of the Evidentiary Hearing. The defendant has failed to establish a claim of ineffective assistance of counsel of appellate or postconviction relief counsel in not raising this issue.(Exh. CC, Order 7/30/19 at 4.)
Thus, although this claim was raised to the PCR court and Arizona Court of Appeals, the claim was not explicitly addressed by either court, but both denied relief. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Harrington v. Richter, 562 U.S. 86, 99-100 (2011). Here, Petitioner posits no reason to believe that this claim was rejected for any reason other than a lack of merit. Accordingly, the undersigned concludes the claim was rejected on the merits and that decision is entitled to deference under § 2254(d). When reviewing such a silent merits decision, “a habeas court must determine what arguments or theories... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 102.
Respondents argue that the Supreme Court has never recognized that a denial of a continuance can amount to a constructive denial of counsel. (Supp. Ans., Doc. 30 at 8.) However, the undersigned assumes, arguendo, that the Supreme Court has held (for purposes of § 2254(d)) that a denial of a continuance can amount to a constructive denial of counsel, and that the requested continuance need not be for the delayed commencement of trial.
The Supreme Court has long recognized there are situations implicating the right to counsel that involved circumstances “so likely to prejudice the accused that the cost of litigating [prejudice] in a particular case is unjustified.” Cronic, 466 U.S. at 658-659. One of those recognized was “in cases like Powell v. Alabama, 287 U.S. 45 [ ] (1932), where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected.” Bell, 535 U.S. at 696. Powell found a constructive denial of counsel where newly appearing counsel was denied a continuance and was required to proceed “within a few moments” to trial. Cronic, 466 U.S. at 660. See Houston v. Schomig, 533 F.3d 1076 (9th Cir. 2008) (applying AEDPA deferential review, and considering whether constructive denial of counsel resulted from denial of continuance) (citing Morris v. Slappy, 461 U.S. 1 (1983)).
Here, however, there was no motion for a continuance made. At most, counsel observed that he had not had an opportunity to confer with Petitioner on the States' suppression responses, and no opportunity to file a reply in support of the Motion to Suppress (and that the defense's witness had not yet appeared). (Exh. S-A, R.T. 9/27/16 at 4-6.)
THE COURT: Nevertheless, are the parties ready to proceed? MR. ZICKERMAN: Judge, I think I'm entitled to reply to those - - those motions with regards - - but I know we're here, we're ready to - - I think we're ready to go. The State, I know, is ready to have their witnesses here. And we're ready, with trial being on Monday.
So we can go forward with those caveats.(Id. at 6.) The trial court then observed that the trial was scheduled for the following Monday and indicated the court was not going to continue the evidentiary hearing. The trial court did, however, propose a recess and for Petitioner to make an oral reply on the motion. (Id.) In response, trial counsel asserted that the primary issue argued in the response requiring a reply (Petitioner's standing to assert the taxi driver's Fourth Amendment claim) would not be relevant if the hearing resulted in a finding of reasonable suspicion for the stop. (Id. at 7.) In sum, Petitioner fails to show that the trial court denied a request for a continuance (as opposed to declining to sua sponte order a continuance).
Even if the trial court's decision to not sua sponte continue amounted to a denial of a continuance, the state courts could have reasonably concluded that it did not constitute the type of denial that would rise to the level of a constructive denial of counsel.
Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel. See Chambers v. Maroney, 399 U.S. 42, 53-54 [ ] (1970). Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589 [ ] (1964).Morris, 461 U.S. at 11-12. Here, the trial court offered a recess and to hear an oral reply, and at the time the trial court acted, Petitioner's witness was still expected, although tardy and not responding to calls. Counsel made an oral reply, which indicated that further reply would only be necessary if reasonable suspicion for the traffic stop was not found (which it was).
Moreover, counsel did not renew a request for a continuance after the witness entirely failed to show. (See Exh. T, PCR Pet. at 13 (“once Newman did not appear at the hearing, counsel never requested additional time to locate Newman or secure Newman's telephonic appearance or to bifurcate the evidentiary hearing to ensure Newman's physical or telephonic presence at the hearing”).)
Under these circumstances, a reasonable jurist could conclude that there was not an unreasoning and arbitrary insistence on expeditiousness. Accordingly, the rejection of this claim does not justify habeas relief, and Ground 6A must be denied.
H. GROUND 7A - DENIAL OF IMPEACHMENT
In Ground 7A, Petitioner argues his confrontation rights were denied when trial counsel was precluded from impeaching the arresting officer at trial on the basis for the traffic stop. (Petition, Doc. 7 at “17”; Memorandum, Doc. 8 at 27, et seq.)
Respondents reply that the right of cross-examination is not limitless, and despite the PCR court's finding that Petitioner was not permitted to cross-examine the officer concerning search and seizure issues, the record reflects that all the prosecution's objections to the office's cross-examination were overruled, and the officer was permitted to answer all the questions. As a result Petitioner had a full and fair opportunity to crossexamine the officer. (Supp. Ans., Doc. 30 at 9-10 (citing Exh. CC, Order 7/30/19 at 5 and Exh. S-B, R.T. 10/14/16 at 40-53).)
Petitioner replies that the objection regarding the stop was sustained, and that his opportunity to cross-examine the officer in the suppression hearing, that did not provide him an opportunity to impeach the officer before the jury. (Supp. Reply, Doc. 33 at 6-7.)
As discussed hereinabove in Section III(B)(2)(b), Petitioner raised this claim in his second PCR proceeding. The federal confrontation clause claim was not, however, explicitly addressed by the PCR court (the last reasoned decision). However, the PCR court did, at least, address a related claim regarding questioning at the evidentiary hearing, ruling:
5. The trial court denied questioning of Officer Holstrom's credibility and legitimacy of the traffic stop at the Evidentiary Hearing and appellate counsel and postconviction relief counsel failed to raise this claim.
An Evidentiary Hearing was held, prior to trial, on the defendant's Motion to Suppress at which time Officer Holstrom was questioned and cross-examined. Search and seizure issues are not factual issues which are litigated to a jury and any questions regarding the search and seizure at a jury trial are improper.(Exh. CC, Order 7/30/19 at 5.)
Despite the lack of an explicit ruling, Petitioner posits no reason to believe that his federal claim was rejected for any reason other than a lack of merit. Accordingly, the undersigned concludes the claim was rejected on the merits and that decision is entitled to deference under § 2254(d). Harrington, 562 U.S. at 99-100.
Contrary to Respondents' contention, the undersigned does not find that the state court found impeachment had been denied at trial. At most, in the course of addressing a claim regarding impeachment at the evidentiary hearing, the PCR court opined that questions regarding the search and seizure at trial would not have been proper.
The undersigned further finds that counsel was allowed at trial some limited crossexamination of the officer on the basis for the traffic stop. Only one specific question was successfully challenged by the prosecution.
Q. And when you effected this stop, did you tell her why?
A. Yes, I did.
Q. And what was the reason that you gave?
MR. BARLOW: Objection, Your Honor. Relevance.
THE COURT: Well, I understand where this is going. The objection is sustained.(Exh. S-B, R.T. 10/4/16 at 42.) Even so, the trial court allowed counsel to pursue some questioning on the stop, including questions about the specific traffic violation. (Id. at 4243.) However, the trial court subsequently cut the questioning short.
Q. So you saw a traffic violation. Do you recall what it was?
MR. BARLOW: Objection, Your Honor. Relevance.
THE COURT: Well, again, if I'm going to allow her to testify that it was a Title 28 violation, I'll allow her to testify as to the - the specific violation of Title 28. But we're going to leave it at that.
So, again, you may answer the question as to the specific violation of Title 28.
THE WITNESS: Yes, I recall the violation.
BY MR. ZICKERMAN:
Q. What was that? I think my question is what was that violation?
A. It was no license plate light.(Id. at 43.) At that point, counsel shifted to questions about the circumstances and procedures after the stop. (Id. at 43, et seq.)
A primary interest secured by the Confrontation Clause of the Sixth Amendment is the right to cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); Davis v. Alaska, 415 U.S. 308, 315 (1974). However, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Van Arsdall, 475 U.S. at 679 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original)). “On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Id. at 679.
Petitioner suggests that further cross-examination would have shown the officer lied about the license plate light, and thus the reason for the stop. However, as observed by the PCR court, the propriety of the seizure of evidence is “a question of fact and law for the court and not for the jury.” Steele v. United States, 267 U.S. 505, 511 (1925). See Fed. R. Crim. P. 12(d) (pretrial motions, including motions to suppress, decided by the court, with factual findings by the court). At the time of trial, the propriety of the traffic stop had already been decided by the trial court and was the law of the case. Petitioner fails to suggest how the propriety of the traffic stop was thus relevant to an issue to be decided by the jury.
At most, a lie about the traffic stop might have tended to impeach the officer's general credibility. Here, Petitioner points to the various evidence he contends would tend to show the license plate was working. But that extrinsic evidence could not be placed before the jury. See Ariz. R. Evid. 608(b) (“extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness”). Although counsel could have simply asked the officer about such evidence, see Ariz. R. Evid. 608(b) (“the court may, on cross-examination, allow them to be inquired into”), Petitioner makes no suggestion that the officer would have had any personal knowledge of such extrinsic evidence to be able to respond to questions about it (i.e. that she had witnessed the purported statements of the taxi company employees). And, as discussed hereinabove, the impeaching value of such evidence was limited by its circumstantial nature (e.g. after-the-fact observations of no repairs).
Petitioner intimates that the lie would have shown bias or motive to lie on relevant matters. But he fails to show why that would be. The admissibility or inadmissibility of the evidence would not provide a reason for the officer to lie about the evidence itself. Particularly where admissibility had already been decided in the case.
Finally, the trial court would have had good reason to prevent trial counsel from attempting to invite the jury to rethink the propriety of the stop and thus the admissibility of the evidence, because that matter was reserved to the court and resolved. Allowing the evidence could have been confusing to the jury, and the trial court had discretion to exclude it. See Ariz. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”) Such considerations are equally applicable in applying the Confrontation Clause. Van Arsdall, 475 U.S. at 679.
Under these circumstances, the undersigned concludes that the state PCR court could have reasonably decided that further cross-examination on the issue of the traffic stop was excludable and did not violate Petitioner's federal confrontation rights.
Ground 7A is without merit and must be denied.
I. INEFFECTIVENESS ON APPEAL - 6B, 7B, AND 8A
1. Ground 6B - IAC re No Reply on Suppression Motion
In Ground 6B, Petitioner argues appellate counsel was ineffective for failing to raise the claim in Ground 6A asserting a denial of a continuance to file a written reply on the motion to suppress was constructive denial of counsel. (Petition, Doc. 7 at 15; Memorandum, Doc. 8 at 25.) Respondents argue the state court's rejection of this claim survives deferential review under § 2254, and given the lack of merit of the underlying claim, appellate counsel was not ineffective in failing to select this as a claim to raise on appeal. (Answer, Doc. 21 at 31-33.) Petitioner replies that this claim was stronger than the claims brought by appellate counsel, because it amounted to a structural error requiring automatic relief. (Reply Memo., Doc. 26 at 12-13.)
As discussed with regard to Ground 6A, the PCR court explicitly rejected similar claims on the merits and concluded counsel was not ineffective in failing to raise the issues. (See Exh. CC, Order 7/30/19 at 4-5.) Despite the lack of an explicit ruling on the specific claim in Ground 6B, Petitioner posits no reason to believe that this claim was rejected for any reason other than a lack of merit. Accordingly, the undersigned concludes the claim was rejected on the merits and that decision is entitled to deference under § 2254(d). Thus this court is left to resolve whether there is any basis to reject the claim which no fair-minded jurist could find inconsistent with Supreme Court authority. Harrington, 562 U.S. at 99-101.
For the reasons discussed hereinabove with regard to Ground 6A, a fair-minded jurist could find the underlying claim to be entirely without merit. The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Moreover, even if there were some merit to the argument, appellate counsel only performs deficiently if unpresented claims were “clearly stronger than issues that counsel did present.” Smith v. Robbins, 528 U.S. 259, 285, 288 (2000). “The law does not require counsel to raise every available nonfrivolous defense. Counsel also is not required to have a tactical reason-above and beyond a reasonable appraisal of a claim's dismal prospects for success-for recommending that a weak claim be dropped altogether.” Knowles v. Mirzayance, 556 U.S. 111, 127 (2009). "In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
Here, Petitioner's only basis for asserting this was the stronger argument is his contention that Ground 6A asserts a structural argument, i.e. no showing of prejudice was required. But the elimination of the requirement for a showing of prejudice from the denial of counsel does not make every denial of a continuance an automatically-reversible error. Rather, the denial must have constructively denied counsel, i.e. it must have rendered it impossible for any counsel to have rendered effective assistance. For the reasons discussed with Ground 6A, Petitioner fails to meet his burden of showing that the continuance was, under the circumstances in this case (e.g. the limited issues requiring a reply, the preclusive effect of a decision the traffic stop was proper on other arguments, etc.) necessary for any effective representation.
Ground 6B is without merit and must be denied.
2. Ground 7B - IAC re Confrontation Claim
In Ground 7B Petitioner argues appellate counsel was ineffective for failing to raise the claim in Ground 7A regarding the denial of impeachment at trial on the traffic stop amounting to a Confrontation Clause violation. (Petition, Doc. 7 at “17”; Memorandum, Doc. 8 at 27, et seq.)
Respondents point to the PCR court's rejection of the underlying claim, and argues the merits rejection of this claim survive deferential review under § 2254(d). (Answer, Doc. 21 at 33-34.)
Petitioner argues the underlying claim is meritorious. (Reply Memo., Doc. 26 at 13.)
As discussed with regard to Ground 7A, the PCR court explicitly rejected similar claims on the merits and concluded appellate counsel was not ineffective in failing to raise those issues. (See Exh. CC, Order 7/30/19 at 5.) Despite the lack of an explicit ruling on the specific claim in Ground 7B, Petitioner posits no reason to believe that this claim was rejected for any reason other than a lack of merit. Accordingly, the undersigned concludes the claim was rejected on the merits and that decision is entitled to deference under § 2254(d). Thus this court is left to resolve whether there is any basis to reject the claim which no fair-minded jurist could find inconsistent with Supreme Court authority. Harrington, 562 U.S. at 99-101.
For the reasons discussed hereinabove with regard to Ground 7A, a fair-minded jurist could find the underlying claim to be entirely without merit. The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Ground 7B is without merit and must be denied.
3. Ground 8A - IAC re Vindictive Prosecution
In Ground 8A, Petitioner argues that appellate counsel was ineffective for failing to assert a claim of vindictive prosecution based on the withdrawal of a plea offer as a result of the filing of the motion to suppress. He also asserts the trial court misled him in the settlement conference by representing that sentences on the drug charges and the weapons charges would be consecutive, resulting in a 25 to 35 year sentence, thereby coercing him on the plea. Respondents argue the state courts rejected these claims on the merits, and that decision survives deferential review under § 2254(d). (Answer, Doc. 21 at 34-36.)
Petitioner replies that his claim is one for ineffectiveness of counsel related to the withdrawal of the plea offer, and is meritorious. (Reply Memo. Doc. 26 at 14.)
The state court rejected both parts of this claim on the merits, reasoning:
A criminal defendant is not entitled to be offered a plea agreement. When a defendant is offered a plea agreement there are often conditions set forth by the prosecutor. After a plea offer is made by a prosecutor the plea offer is often determined to be rejected if the defendant litigates pre-trial motions. Clearly, the defendant was made aware that the State would withdraw the plea offer if the Motion to Suppress was litigated. It was not prosecutorial misconduct for the prosecutor to withdraw the plea offer; the State has the right to do so at any time. Further, assuming the Court ever misstated whether any counts would be served concurrent or consecutive, the defendant did not rely upon any of the Court's statements since the defendant proceeded to trial and was not "coerced" in accepting a plea
agreement. Further, the Court did not impose consecutive sentences. The defendant has failed to state a colorable claim for relief.(Exh. CC, Order 7/30/19 at 5-6.)
To the extent that the state court found no valid state law claim for vindictive prosecution, this federal habeas court is bound by that determination. “We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
To the extent that Petitioner contends a federal vindictive prosecution claim should have been raised, the underlying claim is without merit. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Court considered whether a due process violation for vindictive prosecution occurred during plea negotiations in which the prosecution cautioned that unless a proffered plea agreement was accepted an indictment would be sought on additional charges. The Court recognized: “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is ‘patently unconstitutional.'” 434 U.S. at 363. Nonetheless, the Court concluded that “in the ‘give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.” Id. “Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.” Id. Thus, to the extent that Petitioner attempts to leverage discussions with the Court about the risk of a consecutive sentence into coercion, his argument is without merit.
Moreover, Petitioner fails to show that the trial court's advice was erroneous, because the severance of the weapons charges explains the absence of a consecutive sentence being issued in the judgment attached herein.
Further, as recognized by the PCR court, any coercion implicit in a discussion of a stiffer sentence at trial would have been towards acceptance of the plea offer. Because Petitioner rejected the plea offer, he was plainly not coerced.
Therefore, any claim of vindictive prosecution would have been futile, and appellate counsel was not ineffective in failing to raise it.
Ground 8A is without merit and must be denied.
J. SUMMARY
Ground 3 must be dismissed for failing to state a cognizable basis for relief. Grounds 4B, 5C, 6C, 7C, 8B and 9B must be dismissed pursuant to 28 U.S.C. § 2254(i). Grounds 5A and 5B must be dismissed as procedurally barred on independent and adequate state grounds. Grounds 1, 2, 4A, 6A, 6B, 7A, 7B, 8A, 9A must be denied on the merits.
IV. CERTIFICATE OF APPEALABILITY
“Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Grounds 3, 4B, 5C, 6C, 7C, 8B and 9B of Petitioner's Petition for Writ of Habeas Corpus (Doc. 7) be DISMISSED WITH PREJUDICE for failure to state a cognizable ground for habeas relief.
(B) Grounds 5A and 5B of Petitioner's Petition for Writ of Habeas Corpus (Doc. 7) be DISMISSED WITH PREJUDICE as procedurally barred.
(C) The remainder of Petitioner's Petition for Writ of Habeas Corpus (Doc. 7), including Grounds 1, 2, 4A, 6A, 6B, 7A, 7B, 8A, and 9A be DENIED.
(D) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”