Opinion
No. Civ 04-2932-PHX-EHC (LOA).
October 21, 2005
REPORT AND RECOMMENDATION
This matter arises on Petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254. (document # 1) Respondents have filed an Answer (document #7) to which Petitioner has replied (document # 11). Thereafter, the Court ordered supplemental briefing regarding Petitioner's due process claim. Respondents and Petitioner have submitted such briefing. (documents # 14 and # 16, respectively) Accordingly, this matter is ready for review.
FACTUAL AND PROCEDURAL BACKGROUND
On July 9, 1998, the State of Arizona charged Petitioner and three co-defendants with first degree murder, armed robbery, and aggravated assault. (Respondents' Exhibits A, FF) The following incident gave rise to the charges. (Respondents' Exh. B)
On March 28, 1997, Petitioner planned to commit a robbery and recruited several others. (Respondents' Exh. II at 135-138) Petitioner approached his co-defendant, 16-year-old "Denis", and asked if he "wanted to make some money with a pistol." (Respondents' Exh. B at 2) Denis agreed and joined Petitioner and two other co-defendants, Curtis and Torye, on a drive through Chandler, Arizona searching for a business to rob. The group drove to a nearby bar, where Petitioner gave Denis a gun. (Respondents' Exh. II, Tr. 10/7/99 at 44) Denis entered the bar and decided that it would not work because there "was nobody in there." (Respondents' Exh. II at 48) Petitioner then suggested that the group rob a specific liquor store because Petitioner knew that the store had no security cameras and that the store was minded by and "old man." (Respondents' Exh. B at 2; Exh. II at 49, 53)
Before proceeding to the liquor store, the group stopped at a nearby house where Petitioner obtained a "brown ski mask" for Denis. (Respondents' Exh. II at 49-50) When the group arrived at the liquor store, Curtis handed Denis a pistol and told him that the gun contained eight bullets. (Respondents' Exh. II at 51) Denis cocked the gun and put it in his pocket before exiting the car. (Respondents' Exh. II at 51) Denis walked to the store's drive-through window while the others waited in the car. (Respondents' Exh. B at 4-5; Respondents' Exh. II at 147) Denis saw the store clerk and a "kid [who] looked like he was buying something" inside the store. (Respondents' Exh. II at 55-56) Denis pointed the gun at the clerk and threatened that he would "let . . . eight shots off on [the clerk's] head" if the clerk did not "empty the register." (Respondents' Exh. B at 2-3; Exh. II at 56-57) The clerk complied and gave the register's contents to Denis. (Respondents' Exh. II at 56-57) Denis then shot and killed the clerk as the "kid" stood nearby. (Id. at 8, 58) Denis returned to the vehicle and told the group he had shot the clerk and then divided the $200 between them. (Respondents' Exh. II at 62-63, 150)
After a trial regarding the foregoing incident, on October 19, 1999, the jury found Petitioner guilty of armed robbery and aggravated assault. (Respondents' Exhibit C at 3) The jury was unable to reach a verdict on first degree murder, and the trial court declared a mistrial on that charge. (Id. at 2-3) On January 14, 2000 the trial court sentenced Petitioner to aggravated, consecutive 18-year terms of imprisonment for each conviction. (Respondents' Exhibit D at 26-29)
The Honorable Mark F. Aceto presided.
I. Direct Appeal
On January 27, 2000, Petitioner filed a timely notice of appeal. (Respondents' Exhibit E) On July 31, 2000, Petitioner filed his opening brief challenging only his aggravated assault conviction. (Respondents' Exhibit F) Petitioner argued that the State had failed to demonstrate that Petitioner had either "plan[ned] [the aggravated assault] offense or aid[ed] in its commission" as required by Arizona law. (Respondents' Exh. F at 7-8); A.R.S. §§ 13-301, 13-3-3(A)(3). Consequently, Petitioner argued, the trial court erred in denying his motion for judgment of acquittal under Ariz.R.Crim.P. 20. (Respondents' Exh. F at 7-8)
On December 26, 2000, the appellate court rejected Petitioner's claims and affirmed his convictions and sentences. (Respondents' Exhibit B) On January 2, 2001, Petitioner filed a motion for reconsideration which highlighted "specific facts from the record." The court denied the motion on January 10, 2001. (Respondents' Exh. I, J) Petitioner's counsel did not seek review in the Arizona Supreme Court but moved for an extension of time to allow Petitioner more time to file a pro se petition. (Respondents' Exh. K) Thereafter, on March 20, 2001, Petitioner filed a petition for review in the Arizona Supreme Court. (Respondents' Exh. L, M, N) In addition to asserting the Rule 20 argument he had presented to the Court of Appeals, Petitioner claimed that appellate counsel was ineffective for appealing only Petitioner's aggravated assault conviction. (Respondents' Exhibit M) The Arizona Supreme Court denied review on May 23, 2001. (Respondents' Exhibits O, P)
II. Post-Conviction Proceedings
In the meantime, Petitioner commenced post-conviction relief ("PCR") proceeding On June 8, 2001, petitioner filed a notice of post-conviction relief pursuant to Ariz.R.Crim. P.32. (Respondents' Exhibit Q) On June 28, 2001, he was appointed counsel. (Respondents' Exhibit R) On March 13, 2002, counsel filed a petition for post-conviction relief alleging only that the trial court had erroneously ordered Petitioner to pay restitution for the travel expenses incurred by the victim's family. (Respondents' Exhibit S)
On March 29, 2002, Petitioner filed a pro per supplemental petition for post-conviction relief alleging that his confession was involuntary, that a witness had committed perjury, that his protection against double jeopardy had been violated, that he had discovered new evidence, and that counsel had been ineffective and incompetent. (Respondents' Exhibit T) The state moved to strike the supplemental petition, characterizing it as an attempt at hybrid representation, and the court granted the motion. (Respondents' Exhibits U, V)
On June 3, 2002, Petitioner filed a second supplemental petition, this time through counsel, based on a newly-issued opinion by the Arizona Supreme Court in State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002). (Respondents' Exhibit W) Petitioner alleged that Phillips had "expressly disapproved"State v. Marchesano, 162 Ariz. 308, 783 P.2d 247 (App. 1989), upon which the court of appeals had relied in affirming Petitioner's aggravated assault conviction on direct review. (Id.; Respondents' Exhibit B) Petitioner argued that Phillips was a "significant change" in the law that would "probably overturn" his conviction and sentence based on the lack of evidence that Petitioner had known that a bystander would be present or that Petitioner had intended to assault him. (Respondents' Exhibit W) See Ariz. R. Crim. P. 32.1(g) ("significant change in law" ground for post-conviction relief)
On September 18, 2002, after considering the merits of the second supplemental petition, the trial court denied relief concluding that the jury instruction on accomplice liability "directly mirrorr[ed] Arizona's accomplice liability statutes, and Phillips was not controlling. (Respondents' Exhibit. X) On September 25, 2002, Petitioner filed a motion for rehearing and argued that he had not challenged the accomplice liability jury instruction, but rather had challenged the sufficiency of the evidence to establish accomplice liability. (Respondents' Exhibit Y) On November 11, 2002, the court again denied relief distinguishing Phillips. (Respondents' Exhibit Z) The court, however, granted relief on Petitioner's restitution claim on November 14, 2002. (Respondents' Exhibit AA)
On December 5, 2002, Petitioner filed a petition for review in the Arizona Court of Appeals arguing that, under Phillips, the state was required to prove that he had "specifically intended to place the bystander in reasonable apprehension of imminent physical injury" in order to prove him guilty of aggravated assault. (Respondents' Exhibit BB) The court of appeals denied review on February 10, 2004. (Respondents' Exhibit CC) On February 29, 2004, Petitioner petitioned the Arizona Supreme Court for review. (Respondents' Exhibit DD) The Arizona Supreme Court denied review on June 2, 2004. (Respondents' Exhibit EE) Thereafter, Petitioner filed the pending Petition for Writ of Habeas Corpus. Respondents concede that the Petition is timely under the AEDPA, therefore, the Court will not address the limitations period.
EXHAUSTION AND PROCEDURAL BAR
I. Relevant Law
Under 28 U.S.C. § 2254(b)(1), before a federal court may consider a state prisoner's application for habeas relief, the prisoner must have exhausted, in state court, every claim raised in his petition. Coleman v. Thompson, 501 U.S. 722, 731 (1991). Under Ninth Circuit law, Arizona prisoners serving less than a life sentence exhaust their claims by seeking review in the Arizona Court of Appeals. See, Swoopes v. Sublett, 196 F.3d 1008, 1008-09 (9th Cir. 1999) (stating that state prisoner serving less than a life sentence exhausts state remedies by presenting his claims to the Arizona Court of Appeals.)
To properly exhaust state remedies, the prisoner must have afforded the state courts the opportunity to rule upon the merits of his federal constitutional claim by "fairly presenting" the claim to the state courts in a procedurally appropriate manner.Castille v. Peoples, 489 U.S. 346, 349 (1989). "To provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004).
It is not enough that all the facts necessary to support the federal claim were before the state court or that a "somewhat similar" state law claim was raised. Reese, 541 U.S. at 29(stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim.) The habeas petitioner must cite in state court to the specific constitutional guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). General appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (insufficient for prisoner to have made "a general appeal to a constitutional guarantee," such as a naked reference to "due process," or to a "constitutional error" or a "fair trial.") Similarly, a mere reference to the "Constitution of the United States" does not preserve a claim. See, Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Even if the basis of a federal claim is "self-evident" or if the claim would be decided "on the same considerations" under state or federal law, the petitioner must make the federal nature of the claim "explicit either by citing federal law or the decision of the federal courts. . . ." Lyons, 232, F.3d at 668. A state prisoner does not fairly present a claim to the state court if the court must read beyond the petition or brief filed in that court. Reese, 541 U.S. 27
Where a prisoner fails to "fairly present" a claim to the state courts in a procedurally appropriate manner, state court remedies may, nonetheless be "exhausted." This type of exhaustion is often referred to as "procedural default" or "procedural bar." See,Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991); Coleman, 501 U.S. at 731-32. There are two categories of procedural default.
First, a state court may have applied a procedural bar when the prisoner attempted to raise the claim in state court. See,Nummemaker, 501 U.S. at 802-05. If the state court also addressed the merits of the underlying federal claim, the "alternative" ruling does not vitiate the independent state procedural bar. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989);Carringer v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (state supreme court found ineffective assistance of counsel claims "barred under state law," but also discussed and rejected the claims on the merits, en banc court held that the "on-the-merits" discussion was an "alternative ruling" and the claims were procedurally defaulted and barred from federal review.) A higher court's subsequent summary denial of review affirms the lower court's application of a procedural bar.Nunnemaker, 501 U.S. at 803.
Second, the state prisoner may not have presented the claim to the state courts, but pursuant to the state court's procedural rules, a return to state court would be "futile." Teague v. Lane, 489 U.S. 288, 297-99 (1989). Any claim not previously presented to the Arizona courts is procedurally barred from federal review because any attempt to return to state court to properly exhaust a current habeas claim would be "futile." See, Ariz. R. Crim. P. 32.1, 32.2(a) (b); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); State v. Mata, 185 Ariz. 319, 322-27, 916 P.2d 1035, 1048-53 (1996); Ariz. R. Crim. P. 32.1(a)(3) (relief is precluded for claims waived at trial, on appeal, or in any previous collateral proceeding); 32.4(a), Ariz. R. Crim. P. 32.9 (stating that petition for review must be filed within thirty days of trial court's decision). A state post-conviction action is futile where it is time barred. See,Beaty, 303 F.3d at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)).
In either case of procedural default, federal review of the claim is barred absent a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Dretke v. Haley, ___ U.S. ___, 124 S.Ct. 1847, 1852 (2004); Murray v. Carrier, 477 U.S. 478, 488 (1986).
To establish cause, a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Murray v. Carrier, 477 U.S. 478, 488 (1986). The following objective factors may constitute cause: (1) interference by state officials, (2) a showing that the factual or legal basis for a claim was not reasonably available, or (3) constitutionally ineffective assistance of counsel. Murray, 477 U.S. at 488. To establish prejudice, a prisoner must demonstrate that the alleged constitutional violation "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension." United States v. Frady, 456 U.S. 152, 170 (1982). Where Petitioner fails to establish cause, the court need not reach the prejudice prong.
To establish a "fundamental miscarriage of justice" resulting in the conviction of one who is actually innocent, a state prisoner must establish that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of new evidence. Schlup v. Delo, 513 U.S. 298, 327 (1995); 28 U.S.C. § 2254(c)(2)(B). Before addressing the issue of fundamental miscarriage of justice, the federal court must address all non-defaulted claims and other grounds alleged as cause to excuse the procedural bar. Dretke, 124 S.Ct. at 1852.
I. Whether Petitioner Exhausted State Remedies
In his Petition for Writ of Habeas Corpus, Petitioner asserts one claim: that his conviction violated the Due Process Clause of the Fourteenth Amendment because there was "no evidence to support [his] conviction." (document # 1 at 5) In his Reply, Petitioner expands on his claim and argues, as he did before the State court, that under the Arizona Supreme Court's decision inPhillips, there was insufficient evidence to support his conviction. (document # 11) Respondents assert that Petitioner's federal due process claim is procedurally defaulted because Petitioner did not raise it on direct appeal or during post-conviction proceedings. Respondents contend that although Petitioner asserted a state law sufficiency of the evidence claim, he relied solely on Arizona law and did not present a federal claim. Accordingly, he failed to "fairly present" his federal due process claim to the State courts.
In his Petition, Petitioner argues that his conviction violates the "Due Process Clause of the Fourteenth Amendment" (document # 1 at 5) Review of the body of the Petition and Petitioner's Reply, however, indicates that he actually challenges his conviction under the Arizona Supreme Court's decision inPhillips. (document # 11) Petitioner claims that "the State appellate court's ruling equated the `foreseeability" of a bystander with an actual intent to assault him, contrary toState v. Phillips. . . ." (document # 11 at 7) Petitioner argues that the Court of Appeals' decision amounts to an unreasonable application of the law and was contrary to federal law. (document # 11 at 7-8) Petitioner's reference to federal law, however, does not transform his claim into a federal claim. Petitioner is challenging the State Court's application of a State law, not a federal law.
Additionally, as Respondents assert, Petitioner did not raise a federal due process claim before the State courts. (Respondents' Exh. W, Y, BB, MM, UU, WW, YY, BBB, DDD, HHH, JJJ, LLL, NNN) Accordingly, his federal due process claim is not exhausted. The Court, however, need not decide whether that claim is procedurally defaulted because Petitioner is actually pursuing a state law claim in his § 2254 Petition. Petitioner claims that there was insufficient evidence to convict him applying the standard announced in Phillips. The Arizona Court of Appeals found that Phillips was distinguishable from Petitioner's case. Petitioner challenges the Court of Appeals' interpretation of State law. As discussed below, a federal habeas petition is not the proper vehicle for challenging a state court's application of state law.
II. Subject Matter Jurisdiction
Title 28 U.S.C. § 2254 sets forth the scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a). Thus, a habeas corpus petition must allege a deprivation of a federal right to present a cognizable federal habeas corpus claim. A state's interpretation of its own laws or rules affords no basis for federal habeas corpus relief because no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (stating that federal habeas corpus relief does not lie for errors of state law, a federal court may not reexamine state court determinations on state law issues.) Federal habeas corpus proceedings measure state convictions against federal constitutional requirements applicable to states. A federal district court does "not sit as a `super' state supreme court" with supervisory authority over the application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986). See, Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (stating that a federal court has no authority to review a state court's application of state law). Rather, a federal court may only intervene to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989).
Accordingly, to the extent that Petitioner challenges the State Court's application of the Arizona Supreme Court's decision inPhillips, Petitioner fails to state a cognizable claim and his claim for relief fails. Moreover, his due process claim also fails on the merits as set forth below.
III. Due Process Claim
As previously stated, Respondents correctly assert that Petitioner did not exhaust a federal due process claim. This Court may, however, deny the entire habeas petition on the merits if it is "perfectly clear that the petition does not raise even a colorable federal claim." Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005); Wentz v. Morgan, 2005 WL 1656843, * 6 (E.D.Wash. 2005) (applying Cassett).
Petitioner claims that there was insufficient evidence to support his conviction for aggravated assault because there was no evidence which showed that Petitioner "planned the assault or aided in its commission or that Petitioner even knew the assault took place." (document # 1 at 5)
The Fourteenth Amendment Due Process Clause protects a defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970). When reviewing the sufficiency of evidence to support a conviction, the court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt.Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If no rational trier-of-fact could find proof of guilt beyond a reasonable doubt, the petition for a writ of habeas corpus must issue. Payne v. Borg, 982 F. 2d 335, 337 (9th Cir. 1993). In other words, the dispositive issue is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004).
Although a review for sufficiency of the evidence is grounded in the Fourteenth Amendment, the standard must be applied with reference to the substantive elements of the criminal offense defined by state law. Jackson, 443 U.S. at 324 n. 16. In a habeas corpus petition, the determination of the factual issues by the state court shall be presumed to be correct, and the petitioner has the burden of rebutting this presumption of correctness by "clear and convincing" evidence. 28 U.S.C. § 2254(e)(1). "In considering a petition for a writ of habeas corpus, the district court is required to `make its determination as to the sufficiency of the state court findings from an independent review of the record or otherwise grant a hearing and make its own findings on the merits.'" Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir. 1985) (quoting Turner v. Chavez, 586 F. 2d 111, 112 (9th Cir. 1978)).
Petitioner only challenges the sufficiency of the evidence to establish his guilt of aggravated assault. (document # 1 at 5) He contends that "there was no evidence introduced which showed that Petitioner planned the assault or aided in its commission or that Petitioner even knew the assault took place." (document # 1 at 5) Thus, the Court must determine whether, under Arizona law and the facts of this case, a reasonable jury could have found Petitioner guilty of aggravated assault. See, A.R.S. § 13-1203(A)(2) and 1204(A)(2).
In general, under Arizona law, a defendant is criminally liable under an accomplice theory if, acting "with the intent to promote or facilitate the commission of an offense," he "[s]olicits or commands another person to commit the offense." A.R.S. § 13-301(2); A.R.S. § 13-303(A)(3). During the time that Petitioner committed the offenses giving rise to his challenged conviction, the scope of accomplice liability in Arizona was governed byState v. Marchesano, 162 Ariz. 308, 314, 738 P.2d 247, 253 (Ariz.App. 1989). Marchesano established that an accomplice is criminally liable for a principle's act when that act is a "`probable and natural consequence of their common plan.'" Id. (quoting Karlos v. State, 476 N.E.2d 819, 822 (Ind. 1985)). In this case, the appellate court applied Marchesano to evaluate and affirm the trial court's denial of Petitioner's motion for judgment of acquittal. (Respondents' Exh. B)
After Petitioner's conviction became final and after Petitioner had commenced post-conviction proceedings, the Arizona Supreme Court decided Phillips. Phillips limited accomplice liability in the context of the specific intent crime of premeditated murder to offenses that the accomplice specifically intended to commit. 202 Ariz. at 435-36, 46 P.3d at 1056-57. Based onPhillips, Petitioner supplemented his petition for post-conviction relief to include a claim that Phillips constituted a significant change in the law regarding accomplice liability that, if applicable, would "probably overturn his conviction and sentence." (Respondents' Exh. W) The trial court rejected Petitioner's argument noting that the trial court had instructed the jury directly on the statutory elements of accomplice liability, while in Phillips, the court was concerned with "water[ing] down" that statute. (Respondents' Exh. X, Exh. Z)
Petitioner moved for a rehearing on the ground that the trial court had misconstrued his argument and arguing that, underPhillips, the evidence was insufficient to support his aggravated assault conviction. (Respondents' Exh. Y) The trial court noted that it had previously rejected Petitioner's claim for relief based on a "significant change in the law," and reiterated its conclusion that Phillips was distinguishable from Petitioner's case. The court further noted that Petitioner's sufficiency of the evidence claim lacked merit because there was sufficient evidence that Petitioner intended to commit assault. (Respondents' Exh. Z)
Here, Petitioner devised a plan to execute a robbery. (Respondents' Exh. II, at 41-42, 49, 53) Petitioner selected business establishments to rob. As the Court of Appeals notes, business establishments, such a bars and liquor stores, exist for the purpose of attracting customers. (Respondents' Exh. B at 5) Denis aborted a plan to rob a bar after observing that there was "nobody in there." (Respondents' Exh. II at 48-49, 53, 142) Petitioner then selected a liquor store and Petitioner and Denis agreed that Denis would rob a liquor store using a gun. (Respondents' Exh. II at 48-49, 53, 142)
Petitioner initiated the plan and gave Denis the gun used in the robbery. It was a Friday night making it highly likely that the establishments chosen to be robbed would be occupied by patrons and employees. (Respondents' Exh. II at 13) Petitioner waited in the get away car while Denis executed the plan. At the liquor store, Denis obtained $200 after using a gun to place the store clerk and a friend of the store clerk who was working in the store in reasonable apprehension of imminent physical injury. After returning to the car, Denis split the $200 with Petitioner and the other co-defendants.
It is foreseeable that an open liquor store would be occupied by employees or customers in addition to the person operating the cash register. Similarly, it was foreseeable that Denis, to whom Petitioner had given a handgun containing eight bullets, would intentionally use that weapon to place customers or employees in reasonable apprehension of imminent physical injury to dissuade them from calling the police or otherwise interfering with the robbery. See, A.R.S. § 13-1203(A)(2); 13-1204(A)(2). (Respondents' Exh. II at 41-42) Therefore, a "rational trier of fact," could have found Petitioner guilty of aggravated assault. The jury could have found the essential elements of Arizona's accomplice liability statute: that Petitioner "[s]olicit[ed Denis] to commit" armed robbery and aggravated assault, "with the intent to promote or facilitate the commission" of those offenses. A.R.S. § 13-301(2); A.R.S. § 13-303(A)(3).
Even under the standard announced in Phillips, there was sufficient evidence for a trier of fact to conclude that Petitioner intended to commit aggravated assault. See, Herrera, 506 U.S. at 402. After review of the record, the court finds that the State court's resolution of Petitioner's insufficiency of the evidence claim was not "contrary to" Jackson. See, 28 U.S.C. 2254(d). Accordingly, because Petitioner's due process claim fails on the merits, the Court may deny relief on that claim because it is "perfectly clear" that Petitioner does not raise even a colorable due process claim. Cassett, 406 F.3d at 624.
Accordingly,
IT IS HEREBY RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (document # 1) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See, United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See, Rule 72, Federal Rules of Civil Procedure.