Opinion
CV 22-01178 PHX SRB (CDB)
02-07-2023
Stewart Edward Younan, Petitioner, v. David Shinn, Director, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE SUSAN R. BOLTON:
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge.
Petitioner Stewart Younan seeks relief from his state court conviction pursuant to 28 U.S.C. § 2254.
I. Background
The Arizona Court of Appeals found the following facts, adduced during Younan's criminal proceedings, as follows:
Younan befriended [] McNeese, who at the time was a Department of Public Safety officer. Younan introduced himself as “Rosko Castellano,” explained that he owned several businesses, and gave McNeese a one-hundred dollar bill on which he had written his telephone number. Younan later asked McNeese to find the address of R.A., whom he identified as an ex-girlfriend. [footnote 2: In fact, R.A. was a prosecutor assigned to several of Younan's criminal cases.] Although it was unlawful to do so, McNeese used law enforcement resources to obtain the woman's address, which he gave to Younan. McNeese also generated two false police reports at Younan's request. Additionally, McNeese provided Younan with information about an individual Younan wanted to “strong arm” or kidnap for ransom and gave Younan zip ties and handcuffs to use in the kidnapping. [footnote 3: McNeese was convicted of several crimes stemming from his association with Younan. See State v. McNeese, [] 2011 WL 2462937 (Ariz.
App. June 21, 2011) (mem. decision).] ¶ 2001, Younan was arrested for a probation violation, and McNeese helped get him released from jail by contacting his probation officer. Younan gave McNeese $4,000 for his efforts.
In January 2005, Detective A. joined an investigation into McNeese's criminal activities, which triggered an investigation into Younan's criminal syndicate. Investigators discovered that Younan had directed his subordinates to commit numerous felonies, including burglary, armed robbery, kidnapping, transportation of marijuana for sale, and drug “rips.” After learning that one of Younan's “bodyguards”-K.H.-was in custody, Detective A. interviewed K.H. Detective A. later testified:
[A]bout halfway through the interview, [K.H.] began describing a group of guys that he was with, [Younan] being one of them, plotting to take out or to kill a detective. He continued to tell me in more detail and describe the residence and the vehicles and the goings on at that particular residence, and at that point I realized that he was talking about me.
Investigators learned that, at Younan's behest, subordinates had procured a car and a gun, driven past Detective A.'s home numerous times, and dug a grave in the desert to bury his body, as well as the body of J.K.- whom Younan believed had “snitch[ed]” on him. Detective A. ceased involvement in the Younan-related investigations and moved with his family to a new residence. In the meantime, Younan was arrested for a separate offense, and, while incarcerated, hired a private investigator to obtain personal information about Detective A. and his wife, including their new address.
In June 2009, Younan was charged with two counts of conspiracy to commit first degree murder-class 1 felonies-and two counts of participation in a criminal syndicate-class 2 felonies. Younan moved to dismiss the indictment, asserting violations of his Sixth Amendment right to counsel. The court commenced an evidentiary hearing at which Younan testified. The court ordered Younan to undergo a competency evaluation pursuant to Arizona Rule of Criminal Procedure 11. After Younan was evaluated and deemed competent, the court completed the evidentiary hearing and denied the motion to dismiss.
In the meantime, Younan filed a motion to change counsel, or, alternatively, to proceed in propria persona. Younan requested counsel from “out of state so there's no conflict.” The court declined to appoint substitute counsel but permitted Younan to represent himself with the assistance of advisory counsel.
A jury trial ensued. During voir dire, the court granted Younan's request to reinstate his advisory counsel as his trial counsel. After the State began presenting its case, the defense orally moved to sever the count
alleging participation in a criminal syndicate through use of a public servant. [Count 4] The court denied the motion as untimely. The court further found that joinder was proper under Arizona Rule of Criminal Procedure 13.3(a).State v. Younan, 2016 WL 739409, at *1-2 (Ariz.Ct.App. Feb. 25, 2016) (emphasis added).
Additionally, Younan's post-conviction counsel described other circumstances of Younan's trial as follows, citing to the record on appeal:
Defense counsel Swierski moved to withdraw from the case on October 20, 2009, and [Mr.] Carr was appointed to represent Mr. Younan. Five months later, Petitioner filed a request to change counsel, citing conflict. That request was granted, and [Mr.] Brown was then appointed. Mr. Brown subsequently filed a motion to withdraw on September 9, 2010, citing irreconcilable differences with the Petitioner. The motion was granted on September 17, 2010, and [Mr.] Countryman became Mr. Younan's fifth defense counsel. [footnote 1: [Ms.] Shannon was assigned as counsel for a few days, but her request to withdraw was granted, and Kenneth Countryman was appointed.] Mr. Countryman remained assigned counsel through the trial. [footnote 2: Mr. Younan did file a motion seeking, among other matters, change of counsel on January 25, 2011.] ***
Judge Stephens held an evidentiary hearing on Petitioner's motion to dismiss on January 6, 2012. At the conclusion of Mr. Younan testifying, the court ordered a Rule 11 evaluation to determine the Petitioner's competency. While awaiting the competency determination, Mr. Younan filed a pro per motion to change counsel or proceed pro per. The Petitioner was determined to be competent, and the matter proceeded. The evidentiary hearing on the motion to dismiss continued on April 4, 2012, where the petitioner again testified. After hearing testimony and argument, the court denied the motion.
The petitioner filed an extensive motion to proceed pro per on June 22, 2012. Mr. Younan followed up with a second request to proceed pro per and/or change of counsel and venue on July 10, 2012. The motion was granted on July 23, 2012.
On August 6, 2012, petitioner filed three pro per motions, including a motion to release, motion to dismiss two of the charges, and motion to continue. Specifically, Mr. Younan argued that he needed the continuance to prepare for trial, as he had recently received discovery from his court appointed counsel. All of the motions were denied.
Trial began with jury selection on August 6, 2012. On the second day of voir dire, the petitioner requested [Mr.] Countryman to be reappointed to
represent Mr. Younan. Opening arguments began on August 8, 2012. Defense counsel moved for a mistrial, or to sever count four from the remaining counts. The motions were denied.
While the trial was continuing, the petitioner filed a pro per notice of appeal, asking the Appeals Court to stop the trial. The Court of Appeals dismissed the appeal as being premature on September 7, 2012.
On September 4, 2012, Mr. Younan filed a motion for disqualification requesting several people, including the trial judge, assigned prosecutor, and Mr. Countryman, to be removed from the case. The motion for disqualification was dismissed on September 5, 2012. Mr. Younan filed a motion for reconsideration on September 13, 2012.
The State rested on October 11, 2012. The petitioner's Rule 20 motion was denied, and the defense case began. Four days later, the petitioner made a pro per request for a mistrial. The motion was denied.
Stewart Younan took the stand in his own defense on October 16, 2012. The petitioner testified for close to fifteen hours, over a period of five trial days. At the end of his testimony, the defense rested.
On October 23, 2012, the petitioner filed a pro per motion for mistrial, arguing defense counsel commented that the petitioner was in custody.
The jury began deliberations on October 31, 2012. After five days of deliberations, the jury convicted Mr. Younan of all matters.
On December 3, 2012, Mr. Younan filed a letter to Presiding Judge Reyes, asking for a mistrial. Judge Reyes did not take any action on the matter. On January 23, 2013, the petitioner filed a motion for change of counsel.(ECF No. 9-6 at 5-10) (internal citations to the record on appeal omitted).
Younan was sentenced to concurrent life terms for the murder conspiracy convictions, with a possibility of parole after 25 years, and one concurrent and one consecutive 20-year sentence on the counts of participation in a criminal syndicate. Younan, 2016 WL 739409, at *2.
Younan appealed his conviction and sentence, and was appointed counsel. On appeal he argued:
1. The trial court erred in not dismissing [his] convictions based on violations of his Sixth Amendment Right to Counsel[.]
2. The trial court erred by denying [his] request for other counsel.
3. The trial court erred by denying [the] motion to sever Count 4 dealing with [] McNeese.
4. The trial court erred by denying [his] motions for mistrial based on the admission of other act evidence pursuant to Rule 404(b).(ECF No. 9-2 at 4).
With regard to the claim that the trial court erred by denying his motion to dismiss, “based on asserted violations of his Sixth Amendment right to counsel,” the appellate court found and concluded:
... [Younan] does not identify any portion of the record that supports this claim. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (Appellant's brief shall include “[a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.”). He merely refers to “complain[ts]” and “assertions]” raised in his motion to dismiss and points generally to the “facts referenced” in his 60-page “Statement of Case and Facts” section of the opening brief. Merely mentioning an argument in an appellate brief is insufficient. Opening briefs must present significant arguments, supported by authority. The failure to so argue a claim usually constitutes abandonment and a waiver of that claim. State v. Moody, 208 Ariz. 424, 452 n. 9 [] (2004).
Moreover, during a court hearing on November 4, 2011, defense counsel withdrew the argument that the charges should be dismissed based on problems Younan experienced contacting counsel. [footnote 4: Furthermore, the sheriff explained how jail personnel became aware of certain calls. It was not by listening to them, but occurred when calls were dropped because Younan and his lawyer attempted to bypass the jail's prohibition against three-way calls. ... Younan presented no controverting evidence. Regarding calls to the investigator, the record reflects that for a period of time, they were not considered legal calls because the investigator had not registered her phone number with the jail to be included in the database of legal numbers, and when Younan called her, he received an automated message advising that, if he was attempting to make a legal call, to hang up and dial another number. Younan did not do so, but instead chose to speak with the investigator. .] And Younan cites nothing in the record that supports his assertion that law enforcement “eavesdropped” on conversations with his counsel and investigator. To the extent he offered such testimony at the evidentiary hearing, it is apparent that the superior court did not find it credible. See State v. Gallagher, 169 Ariz. 202, 203 [] (App. 1991) (the credibility of a witness is for the trier of fact and not the appellate court).Younan, 2016 WL 739409, at *2-3 & n.4.
With regard to the trial court's denial of his request to substitute counsel shortly before trial, the appellate court concluded:
Younan was represented by at least six attorneys. Two of his lawyers withdrew due to irreconcilable conflicts with Younan. ...
A trial court's ruling on a request for substitute counsel “will not be disturbed absent an abuse of discretion.” State v. Cromwell, 211 Ariz. 181, 186 [] (2005). The Sixth Amendment right to counsel does not guarantee a defendant a “meaningful relationship” with his attorney, but rather demands that a defendant's rights be balanced “against the public interest in judicial economy, efficiency and fairness.” Id. at 186-87 []. In ruling on a request for substitute counsel, a trial court considers factors such as “whether an irreconcilable conflict exists ... whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel.” Id. at 187 []. To establish an irreconcilable conflict, “the defendant must present evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.” State v. Hernandez, 232 Ariz. 313, 318 [] (2013). “A colorable claim must go beyond personality conflicts or disagreements with counsel over trial strategy.” Id.
Younan did not establish the requisite irreconcilable conflict. The record reflects-and Younan admits-that he “refused to speak with his attorney at one point” because he was more concerned about his conditions of confinement than the impending trial. See Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985) (“A defendant, by unreasonable silence or intentional lack of cooperation, cannot thwart the law as to appointment of counsel.”). During the time trial counsel served as advisory counsel, the court observed:
Your advisory counsel is going above and beyond in terms of meeting with you and going over the evidence hours and hours on end.
In my years of practicing law, I have never seen an attorney spend so much time with a defendant working on a case. Ever. So I think you're very fortunate. I know you feel like your rights are being trampled, but truthfully, I think you're getting a lot of accommodations that other defendants don't receive.
Although Younan and his counsel disagreed about trial strategy and whether to file certain motions, counsel spent days with Younan reviewing the State's evidence before trial-maintaining far more than minimal contact. Additionally, given Younan's proclivity to change counsel, nothing in the record suggests he would not assert the same disagreements with yet another attorney. Finally, Younan's trial counsel actively participated in voir
dire, made numerous objections to the State's evidence, thoroughly crossexamined the State's most significant witnesses (sometimes for days), and made lengthy closing arguments to the jury.
The trial court acted within its considerable discretion in denying Younan's request to substitute counsel. See, e.g., State v. Henry, 189 Ariz. 542, 547 [] (1997) (“When a defendant has repeatedly claimed ‘irreconcilable conflict' with a series of attorneys, the court may deny a motion for yet another lawyer where the orderly administration of justice so requires.”); ... Daniels v. Woodford, 428 F.3d 1181, 1198 (9th Cir. 2005) (a defendant is entitled to new counsel only if communication broke down “with legitimate reason” and not from “unreasonable contumacy”).Id. at *3-4.
The appellate court denied relief on Younan's claim regarding denial of the motion to sever. Id. at *4. The appellate court determined:
Arizona Rule of Criminal Procedure 13.4(c) provides, in relevant part: “A defendant's motion to sever offenses ... must be made at least 20 days prior to trial ... and, if denied, renewed during trial at or before the close of the evidence. ... Severance is waived if a proper motion is not timely made and renewed.” (Emphasis added.) Younan did not move to sever until after the State began presenting its case-in-chief at trial. As such, his motion was untimely and was properly denied on that basis alone. [footnote 5: The court also properly denied the severance request on substantive grounds. As charged, “A person commits participating in a criminal syndicate by ... [i]ntentionally promoting or furthering the criminal objectives of a criminal syndicate by inducing or committing any act or omission by a public servant in violation of his official duty.” A.R.S. § 13-2308(A)(4). Trial evidence established that Younan directed a criminal syndicate to commit felonies for financial gain. To prevent investigations and prosecutions, Younan instructed his syndicate associates to murder certain individuals. By causing McNeese to search for and provide personal information regarding a deputy county attorney who had prosecuted him, and by inducing McNeese to obtain Younan's early release from jail and provide zip ties and handcuffs to effectuate a kidnapping, the offense at issue is “based on the same conduct or [is] otherwise connected together in [its] commission” to the other charged offenses. See Ariz. R. Crim. P. 13.3(a). Further, the court instructed the jury to consider each offense separately and advised that the State must prove the offenses beyond a reasonable doubt. The record thus suggests no prejudice arising from denial of the severance request. ...Id. at *4 & n.5 (emphasis in original).
The Arizona Court of Appeals also denied relief regarding the trial court's denial of a mistrial:
Finally, Younan contends the trial court erred by denying his “motions for mistrial based on admission of ‘other act' evidence pursuant to [Arizona Rule of Evidence] 404(b).” ...
Younan does not cite any portion of the record where he requested a mistrial based on the introduction of so-called “Mafia” evidence, and our independent review has not disclosed any such request. We therefore confine our review to fundamental error. .
The evidence Younan challenges was relevant to explain testimony from co-conspirators and members of the criminal syndicate that they followed his instructions to commit crimes because he appeared powerful, and they were both loyal to and afraid of him. .
Even if the challenged evidence could be fairly classified as other-act evidence under Rule 404(b) [of the Arizona Rules of Evidence], it was relevant and admissible to explain and corroborate the testimony of Younan's co-conspirators. ...Id. at *4-5.
The Arizona Supreme Court denied a petition for review (ECF No. 9-5 at 102), and the appellate court's mandate issued August 18, 2016 (ECF No. 9-1 at 3).
Younan filed a notice of post-conviction relief on July 29, 2016, and was appointed post-conviction counsel. (ECF No. 9-5 at 104-06, 108). “After many extensions and changes of counsel,” a timely counseled petition was filed October 13, 2019. (ECF No. 96 at 93-94). In the counseled post-conviction petition Younan raised the following claims:
On May 29, 2020, Defendant again requested a change of counsel [after being appointed a fourth post-conviction counsel]. The Court denied that request .. On June 25, 2020, Defendant filed a Notice of Filing Pro Per Supplemental Petition for Post-Conviction Relief. The court refused to accept the supplemental petition and returned it to counsel. Counsel then submitted the supplemental petition as a declaration by Defendant Younan in an effort to preserve for appeal the issues raised in the supplemental petition. (ECF No. 9-6 at 94).
1. The Maricopa County Attorney's Office should not have prosecuted the case because one of the offenses attributed to Younan's “syndicate” was a plan to murder a former Maricopa County Attorney's Office prosecutor, creating a conflict of interest and
violating Younan's “constitutional rights under both the United States and Arizona constitutions.” (ECF No. 9-6 at 14);
2. The contents of Younan's jail calls with his alleged co-conspirators were unreliable because they were translated by an individual who was unskilled in translating from the dialect in which the calls were conducted (ECF No. 9-6 at 21-26);
3. Counsel was ineffective for failing to move to sever Count 4 (ECF No. 9-6 at 28-32);
4. The trial court's refusal to continue the case when Younan decided to represent himself on the eve of trial violated his Sixth Amendment right to counsel. (ECF No. 9-6 at 32-34);
5. The State withheld alleged Brady material, i.e., the actual recordings of the jail phone calls-Younan asserts the calls established he was not involved in certain plans of the syndicate (ECF No. 9-6 at 34-38); and
6. Trial counsel was ineffective for: refusing to file motions prepared by Younan;failing to acquire a proper transcription of the jail phone calls; failing to move to exclude
witnesses; failing to object to the testimony of Younan's probation officer because the officer's name was not included in the State's disclosure; and improperly commenting on the fact that Younan was in solitary confinement (ECF No. 9-6 at 42-43). Younan also asserted counsel's cumulative errors deprived him of his right to the effective assistance of counsel. (ECF No. 9-6 at 43-44).
Younan filed an pro se “declaration” on August 20, 2020. (ECF No. 9-6 at 49-60; see also supra n.1). Younan asserted prosecutorial misconduct, trial court error, improper behavior by jail personnel, and ineffective assistance of trial counsel (based on counsel purportedly covering-up all of the investigative, prosecutorial, and court malfeasance); Younan labeled these individuals the “Crew of Corruption.” (Id.). Younan also asserted malfeasance by his appellate counsel:
Defendant's Direct Appeal Attorney [] called Defendant in D.O.C. and told him that the judge at the Court of Appeals told her to sell Defendant out. That she was to pick two weak arguements [sic] and argue them. She did of course. She also refused to file a reply to the state rebuttal.(ECF No. 9-6 at 57).
The State's theory in this case was that the Petitioner had been a member of a criminal syndicate for years. Count Four charged the Petitioner with this alleged conduct for the years between 2001 and 2006, years prior to the scheme that arose to kill a possible witness and detective investigating the group, charged in Counts 13. (ECF No. 9-6 at 15). “[U]ndisputed in the record is that [R.A.] was an employee of the Maricopa County Attorney's Office from 1998 until 2003 and was an employee of that agency at the time of the alleged activity by the criminal syndicate and Petitioner.” (ECF No. 9-6 at 16). Younan argued allowing the Maricopa County Attorney's Office to prosecute him was “fundamental error:” A conflict of interest on the part of prosecuting attorney is fundamental error because it undermines confidence in the integrity of the criminal proceeding. See Young v. U.S. ex rel. Vuitton et Fils SA., 481 U.S. 787 (1987); Rose v. Clark, 478 U.S. 570, 577-578 (1986); Vasquez v. Hillery, 474 U.S. 254, 263-264 (1986). Further, a conflict of interest can apply not only to an individual, but to an entire office or institution. See Young at 481 U.S. 787, 811-12; See also Turbin v. Superior Court in andfor the County of Navajo, 165 Ariz. 195, 199 [] (App. 1990). (ECF No. 9-6 at 17). Younan further asserted:
... The Petitioner's constitutional rights under the United States and Arizona Constitutions guarantee a fair and impartial trial. He is also entitled to the effective assistance of counsel. He was deprived of both when his counsel failed to object to continued prosecution by the MCAO and the trial proceeded with a conflicted prosecuting attorney's office.(ECF No. 9-6 at 21).
As such, the trial court's admission of the translations and publication to the jury constitutes error. Where, as in this case, the erroneous translations become the primary evidence of the content of the phone calls and are also the main evidence the State uses to establish a defendant's state of mind and involvement in actions taken by other members of a criminal syndicate, it is a violation of a Petitioner's constitutional right to a fair trial. (ECF No. 9-6 at 27).
... the charges against the Petitioner involved two separate time frames. Counts 1-3 alleged conduct that occurred between 2006 and 2009. These counts included allegations that the Petitioner (1) conspired to murder a potential witness, [J.K.], (2) conspired to murder a detective, [V.A.], and (3) was a member of a criminal syndicate between January 1, 2006 and June 17, 2009. See ROA, item 1. Count 4, however, alleged that the Petitioner was a member of a criminal syndicate between May 1, 2001 and January 31, 2006. (Id.) [sic]. In other words, the allegations about the two murder conspiracies are unrelated and remote in time as to the allegations of Count 4. (ECF No. 9-6 at 30-31). “In proving the allegations of Count 4, the State elicited evidence that the criminal syndicate had robbed a liquor store, burglarized a home in an attempt to obtain controlled substances and conspired to murder [R.A.] ... (RT 08/12/12, pgs. 78-85).” (ECF No. 9-6 at 31). In his post-conviction action Younan arguably framed this as an ineffective assistance of counsel claim based on counsel's alleged failure to move for severance until the State's elicitation of evidence regarding Count 4: “At the admission of this evidence, defense counsel objected, moved to sever, and moved for a mistrial. []. The objections were overruled and the motion to sever was denied as untimely.” (ECF No. 9-6 at 31).
It was the Petitioner's contention that there were conversations recorded which showed that he was not involved in the group's plans. [] He contended that the State's theory that he was directing this criminal syndicate was untrue and would be disproven by other phone calls which were not provided. []. He wanted to review the recorded conversation to show other instances when it was clear that he was not participating in what the group was doing, and present that evidence to the jury to rebuts [sic] both the State's charges but also the State's theory that he was directing the criminal activity. []. (ECF No. 9-6 at 35).
In the months before trial and owing to the continual complaints by the Petitioner about his counsel's disagreement with how the case should be handled, the State and defense counsel agreed, and the trial court permitted the Petitioner to file his own motions. []. Pursuant to this arrangement, the Petitioner researched and wrote a motion. He gave the motion to his counsel to file. []. His counsel never filed the motion, despite the court's permission and the Petitioner's request. []. The failure to file the motions in violation of his client's request and the court's permission constitutes a violation of the Petitioner's Sixth Amendment right to effective counsel. (ECF No. 9-6 at 40).
[D]efense counsel was ineffective for not making a motion to exclude witnesses under Arizona Criminal Rule 8. Under Arizona law, either party may request and the Court must grant a motion to exclude witnesses. This order prevents any subsequent witness from knowing the prior testimony of the other witnesses in the case. This exclusion is necessary to protect the truth-finding power of effective cross-examination. (ECF No. 9-6 at 41) (apparently referencing Rule 615 of the Arizona Rules of Evidence).
... defense counsel failed to object to the testimony of a witness who was not properly disclosed [i.e., Petitioner's probation officer]. (RT 10/29/12 pgs 4-50). [The probation officer] was neither disclosed on any witness list nor identified by the judge to the jury as a possible witness. Defense counsel did not object. His testimony was significant in that he was able to testify that he observed that the Petitioner had in his possession the home address of Detective Allen, thus tying him to the conspiracy and criminal syndicate. [The probation officer] was the only witness to give this testimony. Defense counsel's failure to recognize the improper witness and to make an objection constitutes ineffectiveness. . (ECF No. 9-6 at 42).
As noted supra, appellate counsel raised four claims for relief and the appellate brief is 79 pages in length. (ECF No. 9-2). The State's responsive brief was filed November 16, 2015 (ECF No. 9-3 at 113), and no reply brief was filed.
In response the State noted that, with regard to the ineffective assistance of trial counsel claims, counsel was not ineffective regarding a motion to sever because severance was not warranted. The State further argued whether to seek severance is matter of strategy left to trial counsel's discretion, and emphasized that counsel did move to sever Count 4. (ECF No. 9-6 at 72-73). The State also noted Younan had not established any prejudice arising from trial counsel's allegedly defective performance because the evidence of guilt was “overwhelming.” (ECF No. 9-6 at 73).
The state habeas trial court, which was also the convicting court, denied relief on November 3, 2020. (ECF No. 9-6 at 93-103). The court concluded that Younan's claims regarding an alleged conflict of interest were precluded because Younan failed to raise them at trial or on appeal, citing Arizona Rule of Criminal Procedure 32.2(a). (ECF No. 96 at 95). The court found the claims regarding unreliable transcripts were precluded because Younan failed to raise them at trial or on appeal, again citing Arizona Rule of Criminal Procedure 32.2(a). With respect to Younan's claim that his trial counsel was ineffective for failing to move to sever Count 4, the trial court noted the Arizona Court of Appeals found no error and no prejudice in the denial of severance. (ECF No. 9-6 at 97). Regarding the denial of Younan's request for a continuance and the alleged failure to disclose Brady material, the trial court concluded the claims were precluded under Rule 32.2(a) because they were not raised on appeal. (ECF No. 9-6 at 98-99).
Younan argues it was error to permit a non-certified language translator to testify at trial regarding the translation of jail phone calls Defendant Younan made to his co-conspirators. Without citing to any specific call or portions of the record regarding any jail call, Defendant Younan argues the translations used at trial omitted substantial portions of the jail calls and the transcription was unreliable. Defendant apparently did not object at trial and the issue was not raised on direct appeal. A defendant cannot raise in a Rule 32 petition any claim that was waived at the trial level or that should have been raised on direct appeal. See Rule 32.2(a), Arizona Rules of Criminal Procedure . Regardless, Defendant was not surprised by use of the transcripts at trial. The Assyrian interpreter was appointed by the court on March 7, 2012. On April 20, 2012, the State filed a memorandum regarding the translated transcripts citing case law that required a defendant to raise issues regarding accuracy prior to the trial commencing[.] The State requested a pretrial detennination on whether there was any dispute regarding the accuracy of the translations. At trial, the jury learned the interpreter spoke a different dialect than the Aramaic spoken on the tapes and that the speakers on the tapes spoke in code using words like microwave for gun and church for grave. Defendant testified at trial for five days and had the opportunity to clarify any inaccuracies in the translation of the jail calls. All of the coconspirators testified at trial and Defendant Younan had the opportunity to cross-examine them regarding the content of their conversations with him on the jail calls. ... (ECF No. 9-6 at 96-97).
In denying Younan's claim of error in not granting a continuance, the state habeas court noted and concluded:
Defendant contends that the Court granted his request to proceed pro per just 14 days before trial began. Because he was in custody he could not prepare for trial in the manner he wanted. Continuance of the trial is an issue Defendant Younan could have raised on direct appeal and did not and thus he is precluded from raising it now under Rule 32.2(a), Ariz. R. Crim. P. Regardless, as noted by the Court of Appeals, Defendant Younan was represented by at least six attorneys prior to trial, two that withdrew due to irreconcilable conflicts with Defendant Younan..... The trial began on August 6, 2012, over three years after the case was charged. On the second day of trial, Defendant Younan requested the Court substitute advisory counsel as counsel of record because he did not want to continue representing himself. That attorney had prepared for trial and indicated to the court he was prepared to go forward and represent Defendant Younan at trial. When Defendant Younan argued on direct appeal that the court erred in failing to appoint new counsel for him immediately before trial, the Court of Appeals stated as follows.
Although Younan and his counsel disagreed about trial strategy and whether to file certain motion, counsel spent days with Younan reviewing the State's evidence before trial - maintaining far more than minimal contact. Additionally, given Younan's proclivity to change counsel, nothing in the record suggests he would not assert the same disagreement with yet another attorney. Finally, Younan's trial counsel actively participate in voir dire, made numerous objections to the State's evidence, thoroughly cross-examined the States' most significant witnesses (sometimes for days), and made lengthy closing arguments to the jury.
Defendant fails to specify how his case was prejudiced by the denial of his motion to continue. When he undertook self-representation, the Court advised him of his duties and obligations. He stated he was aware and wanted to proceed to represent himself. The Court finds no basis for post-conviction relief on this ground.(ECF No. 9-6 at 97-98).
In denying Younan's ineffective assistance of counsel claims, the court cited Strickland v. Washington and concluded Younan failed to establish that counsel's performance was deficient or that he was prejudiced by any alleged error. (ECF No. 9-6 at 99-101). Finally, the trial court briefly listed the claims Younan argued in his pro per declaration, noting he failed to provide factual support for the claims and also concluding most of the allegations were precluded under Rule 32.2(a). (ECF No. 9-6 at 101-03). The court noted: “Defendant's petition for post-conviction relief lack[s] any reliable factual foundation and failed to provide substantial evidence to support his claims. Thus, no evidentiary hearing is required.” (ECF No. 9-6 at 103).
Younan appealed the denial of post-conviction relief, and the appellate court granted review but summarily denied relief. See State v. Younan, 2021 WL 3744394, at *1 (Ariz.Ct.App. Aug. 24, 2021). The Arizona Supreme Court denied review and the appellate court's mandate issued May 3, 2022. (ECF No. 9-6 at 149).
II. Claims for Relief
In his federal habeas petition, Younan asserts:
1. His Fifth, Sixth, and Fourteenth Amendment rights were violated by “[t]he State's conflict of interest” (ECF No. 1 at 10-12);
2. The admission at trial of the “translated transcripts” of jail calls violated his Fifth, Sixth, and Fourteenth Amendment rights (ECF No. 1 at 13);
3. His counsel was unconstitutionally ineffective for failing to move to sever Count 4 (ECF No. 1 at 14);
4. His rights to due process and a fair trial were violated by the trial court's refusal to continue the case (ECF No. 1 at 15);
5. The prosecution violated his rights pursuant to Brady v. Maryland (ECF No. 1 at 16-21);
6. His counsel were ineffective because they were intentionally and grossly negligent (ECF No. 1 at ¶ 22-39);
7. His rights to due process and a fair trial were by violated by the trial court's “abuse of judicial discretion,” bias, and “misconduct” (ECF No. 1 at 40-43);
8. He was subjected to “cruel, inhuman, degrading punishment and treatment” and “torture,” in violation of his Sixth, Eighth, and Fourteenth Amendment rights and the “Geneva Conventions Against Torture” (ECF No. 1 at 44); and
9. He is “completely] and utter[ly] innocen[t]” (ECF No. 1 at 45).
Respondents contend “Claims 1, 2, 4, 5, 7, and 8, and most subclaims in Claim 6 are procedurally defaulted,” and “Claims 3 and 9, as well as the exhausted subclaims in Claim 6, lack merit.” (ECF No. 9 at 2).
III. Analysis
A. Governing law
1. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008). In non-capital cases arising in Arizona, the “fair presentment” and “highest court” tests are satisfied if the habeas petitioner presented the federal habeas claim to the Arizona Court of Appeals in their direct appeal or in a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date, 619 F.Supp.2d at 762-63.
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition; additionally, in both the state court action and his § 2254 pleading the petitioner must supply the same facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004).
A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., Id. at 92.
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). Pursuant to this doctrine, an implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
The doctrine of procedural default provides that a federal court may not review a habeas claim when a state court declined to consider the merits of the claim on the basis of an “adequate and independent” state procedural rule, such as those governing waiver and the preclusion of claims. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017). The doctrine bars a federal court from considering the merits of a habeas claim when the state court explicitly invoked a state procedural rule to bar the claim, even if the state court does so as a separate basis for its decision. See Williams v. Filson, 908 F.3d 546, 579 (9th Cir. 2018), citing Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996).
However, “a state court's application of a procedural rule can preclude federal habeas review only if the rule is independent of federal law and adequate to support the judgment.” Williams, 908 F.3d at 577. See also Coleman, 501 U.S. at 728. To be “independent,” “the state law basis for the decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state court's application of a procedural bar does not become interwoven with and dependent upon an antecedent federal constitutional rule where the state court discusses the merits of a claim solely to determine whether the petitioner can establish cause and prejudice to overcome a procedural default. See Williams, 908 F.3d at 579; Moran, 80 F.3d at 1269. To be deemed adequate, the state procedural rule on which the state court relied must be firmly established and consistently applied. E.g., Beardv. Kindler, 558 U.S. 53, 60 (2009); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). A state rule is considered consistently applied and well-established if the state courts follow it in the “vast majority of cases.” Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009), citing Dugger v. Adams, 489 U.S. 401, 417 n.6 (1989).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, Younan bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the State's procedural rules for presenting the claim impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a habeas petitioner must show the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019); Date, 619 F.Supp.2d at 766.
Petitioners who default federal habeas claims in state court may also obtain review if they show that failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). See also Valencia v. Ryan, 2012 WL 1681991, at *4 (D. Ariz. Jan. 9, 2012). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011). To pass through the actual innocence/Schlup gateway to a hearing on the merits of the defaulted claim, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399, quoting Schlup, 513 U.S. at 327. The miscarriage of justice exception to the procedural default rule “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original).
2. Standard of review of exhausted claims
Pursuant to 28 U.S.C. § 2254(d)(1), a federal court cannot grant habeas corpus relief to a state prisoner on a claim rejected on the merits by the state courts unless the petitioner demonstrates the state court's decision denying the claim “was contrary to” or an “unreasonable application” of federal law as clearly established in the holdings of the Supreme Court at the time of the state court decision, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97-98 (2011). This standard is “difficult to meet.” Id. at 102. It is a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted).
A state court's decision is “contrary to” federal law if it applies a rule of law that contradicts the “controlling” law set forth in Supreme Court cases at the time of the state court's decision, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and arrives at a result different from Supreme Court precedent. E.g., Mitchell v. Esparza, 540 U.S. 12, 14 (2003). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court's decision.'” Id., citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Furthermore, a state court's decision is not an unreasonable application of clearly established federal law if it merely declines to apply a specific legal rule that has not been squarely established by the Supreme Court. Harrington, 562 U.S. at 101 . The Court must evaluate the application of the Supreme Court's holdings in the context of the established rule's specificity: “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. (internal quotation mark omitted). “[W]here the precise contours of [a] right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotation marks omitted).
Under § 2254(d)(2), a federal court is relieved of AEDPA deference when a state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” To show such an error occurred, the petitioner must establish that the state court's decision rested on a finding of fact that is “objectively unreasonable.” Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004), quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “The question under AEDPA is not whether a federal court believes the state court's [factual] determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). See also Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016).
The AEDPA requires federal courts to train their attention on the reasons why the state court denied relief. See Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018). The inquiry requires federal courts to look to the last reasoned state court opinion deciding a petitioner's federal claims. Id. at 1192. Where the decisions of higher state courts are silent and do not disclose the reason for denying relief, the Court must “look through” the mute decisions to the last state court decision that provides a relevant rationale. Id. Federal habeas courts presume that the higher courts, through their mute decisions, agreed with and adopted the reasoning of the lower court. Wilson, 138 S.Ct. at 1192; Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016). This presumption extends to a lower court's imposition of a procedural bar to the consideration of the merits of a constitutional claim. See Kernan v. Hinojosa, 578 U.S. 412, 415 (2016). Federal courts presume that an otherwise mute higher court decision did not silently disregard application of a procedural bar and consider the merits of claim. Id. See also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Additionally, when assessing whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, the Court's “review ... is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), quoted in Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).
3. The Strickland standard
The “clearly established” federal law regarding an ineffective assistance of counsel claim is stated in the United States Supreme Court's opinion in Strickland v. Washington. To establish that he was denied the effective assistance of counsel, a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). It is the petitioner's burden to demonstrate both prongs of the Strickland test. E.g., Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). A petitioner bears the burden of demonstrating counsel's choices regarding the presentation of his defense constituted deficient performance and were prejudicial. See Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009); Rego v. Sherman, 704 Fed.Appx. 634, 638 (9th Cir. 2017); Lazo v. Clark, 387 Fed.Appx. 754, 755 (9th Cir. 2010).
With regard to the performance prong of the Strickland test, the petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. See Strickland, 466 U.S. at 687. Counsel's performance will be held unconstitutionally deficient only if the habeas petitioner proves counsel's actions “fell below an objective standard of reasonableness,” as measured by “prevailing professional norms.” Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010). It is well settled that “counsel's tactical decisions at trial ... are given great deference and must [] meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006).
To establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This standard for assessing prejudice requires a substantial, not just “conceivable,” likelihood of a different result. Id. at 693. See also Sanchez v. Davis, 994 F.3d 1129, 1139 (9th Cir. 2021), cert. denied sub nom., Sanchez v. Broomfield, 143 S.Ct. 355 (Oct. 17, 2022). When considering whether a habeas petitioner was prejudiced by his counsel's alleged errors, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. When answering this question, the federal habeas court must necessarily consider the strength of the state's case against the petitioner. See Wainwright v. Sykes, 433 U.S. 72, 91 (1977); Djerf, 931 F.3d at 883; Allen v. Woodford, 395 F.3d 979, 999 (9th Cir. 2005) (“even if counsel's conduct was arguably deficient, in light of the overwhelming evidence of guilt, [the petitioner] cannot establish prejudice”).
B. Analysis of Younan's claims for relief
1. Maricopa County Attorneys Office's alleged conflict of interest
Younan contends his right to a fair trial and his right to due process were violated by “[t]he State's conflict of interest.” (ECF No. 1 at 10-12). He raised this claim in his state post-conviction action, and the state court concluded the claim was procedurally defaulted:
. Defendant Younan argues there was a significant conflict of interest that constituted fundamental eror because the target of one murder conspiracy. was employed by the Maricopa County Attorney's office as a deputy county attorney from 1998 until 2003. ... Defendant does not cite to any specific ethical rule but relies on generic case law regarding conflicts of interest, contending there was an appearance of impropriety. . Since the issue was never raised by Defendant at trial or on appeal, it is precluded. See Rule 32.2(a), Arizona Rules of Criminal Procedure.(ECF No. 9-6 at 96-97).
The state habeas trial court found relief on this claim barred by a state procedural rule. The state procedural rule applied to this claim, i.e., Arizona Rule of Criminal Procedure 32.2(a)(3) (mandating that the failure to raise a claim of error is waived if not presented at trial or on appeal), is independent of federal law, firmly established, and regularly followed. See, e.g., Stewart v. Smith, 536 U.S. 856, 860 (2002); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014). Rule 32.2(a)(3) is an independent and adequate basis for denying relief on a claim procedurally defaulted in the state court and presented in a § 2254 petition. See Stewart, 536 U.S. at 859-60; Martinez v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019). Because the state court applied an adequate and independent state procedural rule in declining to review the merits of this claim, it is procedurally defaulted. See Beard, 558 U.S. at 55; Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005).
Because this claim is procedurally defaulted, relief on the claim is barred unless Younan establishes cause for and prejudice arising from his procedural default, or that a fundamental miscarriage of justice will occur absent consideration of the claim. In his reply in support of his petition, Younan does not present any cause for his procedural default of this claim. With regard to any prejudice, Younan does not present facts, or offer anything other than conclusory allegations, that he will be prejudiced absent the Court's consideration of the merits of the claim. Notably, in denying relief on this claim the state court determined:
Defendant Younan failed to establish any prejudice or that he did not receive a fair and impartial trial. Defendant argued that he was prejudiced because the alleged conflict affected the prosecutor's charging decisions, affected the plea offers made to him, and affected the State's sentencing recommendation. However, the facts contradict Defendant's assertions. Defendant was offered a plea agreement, participated in more than one settlement conference, but was adamant he did not wish to plead guilty. See page 11 of Defendant's declaration filed 8/20/2020 (Defendant never told anyone that he would take a plea. Defendant is not guilty. Everyone knows this, otherwise why cover everything up?). ... At sentencing, Defendant Younan did not receive the maximum sentence provided by law. ...
Defendant's claims are not factually or legally supported and he can show no prejudice.(ECF No. 9-6 at 96-97).
Younan does not dispute any of the factual conclusions reached by the state habeas trial court regarding his unwillingness to take a plea or regarding his sentence. Nor does it appear that the state court's factual findings were unreasonable in light of the evidence presented to the state court. Accordingly, Younan fails to establish cause for or prejudice arising from his procedural default of this claim.
Additionally, Younan fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of his defaulted claims, as he does not present a colorable showing of factual, rather than legal, innocence. See Casey v. Moore, 386 F.3d 896, 921 n.27 (9th Cir. 2004) (“[T]he fundamental miscarriage of justice exception applies only when a constitutional violation probably has resulted in the conviction of one actually innocent of a crime and petitioner supplements his constitutional claim with a colorable showing of factual innocence, which [petitioner] has not done.”). Younan has not established it is more likely than not that no reasonable juror would have convicted him in light of new evidence presented in his habeas petition, as he presents no new evidence in his habeas pleadings. See Schlup, 513 U.S. at 327; Cook, 538 F.3d at 1028; Coluccio v. Montana, 469 Fed.Appx. 650, 653 (9th Cir. 2012).
2. Transcripts of jail telephone calls
Younan asserts that the admission at trial of the “translated transcripts” of jail phone calls violated his Fifth, Sixth, and Fourteenth Amendment rights. (ECF No. 1 at 13).
Younan raised this claim in his post-conviction action and the state habeas trial court found Younan's claim regarding the transcripts was precluded because Younan failed to raise the claim at trial or on appeal, citing Arizona Rule of Criminal Procedure 32.2(a). As with his first claim, this claim was procedurally defaulted pursuant to an adequate and independent state procedural rule.
Additionally, with regard to prejudice, the state habeas trial court noted:
Younan argues it was error to permit a non-certified language translator to testify at trial regarding the translation of jail phone calls Defendant Younan made to his co-conspirators.
Regardless [of the procedural default of this claim], Defendant was not surprised by use of the transcripts at trial. The Assyrian interpreter was appointed by the court on March 7, 2012. On April 20, 2012, the State filed a memorandum regarding the translated transcripts citing case law that required a defendant to raise issues regarding accuracy prior to the trial commencing[.] The State requested a pretrial determination on whether there was any dispute regarding the accuracy of the translations. At trial, the jury learned the interpreter spoke a different dialect than the Aramaic spoken on the tapes and that the speakers on the tapes spoke in code using words like microwave for gun and church for grave. Defendant testified at trial for five days and had the opportunity to clarify any inaccuracies in the translation of the jail calls. ...(ECF No. 9-6 at 96-97).
As with his first claim for relief, Younan fails to establish cause for or prejudice arising from his procedural default of this claim, and he does not make a colorable argument that a fundamental miscarriage of justice will occur absent consideration of the merits of the claim.
3. Ineffective assistance of counsel re severance
Younan contends his counsel's performance was unconstitutionally ineffective for failing to move to sever Count 4 (ECF No. 1 at 14). He raised this claim in his state action for post-conviction relief and the state habeas trial court denied relief. Applying the Strickland analysis, the state court determined Younan had not established any prejudice arising from counsel's alleged failure to move to sever Count 4 because the Arizona Court of Appeals determined severance was not warranted.
The state court's denial of relief on this claim was not clearly contrary to nor an unreasonable application of Strickland. Younan fails to establish prejudice arising from counsel's alleged failure to move to sever Count 4 because, on appeal, the Arizona Court of Appeals determined that severance of Count 4 was not warranted. Accordingly, Younan is unable to establish that, had counsel moved to sever the motion prior to trial, that motion would have been granted and he therefore fails to present a colorable claim of ineffective assistance of counsel. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (holding counsel's failure to take a futile action can never be deficient performance); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (stating that “[a] lawyer's zeal on behalf of his client does not require him to file a motion which he knows to be meritless on the facts and the law.”).
4. Denial of motion to continue on the eve of trial
Younan argues his “5th, 6th, and 14th Amendment rights” were violated by the “trial court's refusal to continue the case .” (ECF No. 1 at 15). Younan appears to argue both trial court error (i.e., a violation of his right to due process) and that his Sixth Amendment right to a fair trial and his right to the effective assistance of counsel was violated. (ECF No. 1 at 15; ECF No. 23 at 17-19).
Petitioner had recently went pro per and needed an extension as he had yet seen his discovery ... Judge Stephens allowed Petitioner to go pro per just 14 days to trial. Petitioner had made every attempt to acquaint himself with the evidence ... As it was impossible for anyone, attorney or not, to be prepared for trial in 14 days in such a case. . Violation of Petitioner's 5th, 8th and 14th Amendment rights]. (ECF No. 23 at 17-18).
Younan did not properly exhaust a Fifth Amendment due process claim or a Sixth Amendment fair trial claim regarding the trial court's refusal to continue the case. Younan did not raise a due process or fair trial claim based on thie alleged trial court error on appeal, and, accordingly, those claims were procedurally defaulted by Arizona Rule of Criminal Procedure 32.2(a)(3). To the extent Younan asserts a constitutional claim based on this alleged trial court error in his federal habeas petition, the claim was procedurally defaulted by his failure to raise the issue on appeal. As with his other procedurally defaulted claims, Younan fails to establish cause for or prejudice arising from his procedural default of this claim as construed as trial court error, and he fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of the claim.
Younan raised a vague Sixth Amendment claim in his state post-conviction action based on the denial of a continuance, asserting denial of his right to the effective assistance of counsel rather than trial court error. In his counseled petition for state post-conviction relief, Younan asserted:
Two weeks before trial, the trial court permitted the Petitioner to represent himself during the upcoming trial and allowed his current attorney, Mr. Countryman, to act as advisory counsel. []. During the hearing, the Petitioner asked for more time to prepare for trial. [] His specific request was based on the fact that he was missing evidence. Because he was in custody, he lacked the technology needed to listen to hundreds of recorded jail calls. []. Mr. Countryman confirmed to the court that he had been unable to permit the Petitioner to listen to the recordings because they were playable only using a laptop computer. [] Obviously, the Petitioner did not have access to a laptop to use while in custody.
On the first day of trial, Petitioner again indicated he was not ready. []. The trial court denied any motion for extension of time. []. The Petitioner then decided that he wanted to have counsel to represent him.(ECF No. 9-6 at 13) (citations to the record on appeal omitted).
In the counseled petition Younan maintained: “THE TRIAL COURT'S REFUSAL TO CONTINUE THE CASE PREJUDICED THE PETITIONER,” arguing that “[i]n some instances, the trial court's denial of a motion to continue may implicate the defendant's Sixth Amendment right to effective counsel.” (ECF No. 9-6 at 32-33). Younan then argued that denying the motion for a continuance prejudiced him from being effective as his own counsel. (ECF No. 9-6 at 34) (“due to the limitations of being incarcerated at the time he was unable to make himself ready for trial. Finally, the denial certainly prejudiced the Defendant. He was not prepared. He had not listened to some of the most crucial evidence the State intended to present ...”). Younan averred he could “show that the denial of his motion to continue implicated his Sixth Amendment right to effective counsel. Given the limitations and technological impediments it was impossible for the Petitioner to prepare for trial. As a result, his claim is colorable should necessitate an evidentiary hearing.” (Id.).
In denying this claim for relief, the state habeas trial court found no prejudice arising from the denial of a continuance:
Defendant contends that the Court granted his request to proceed pro per just 14 days before trial began. Because he was in custody he could not prepare for trial in the manner he wanted. Continuance of the trial is an issue Defendant Younan could have raised on direct appeal and did not and thus he is precluded from raising it now under Rule 32.2(a), Ariz. R. Crim. P. Regardless, as noted by the Court of Appeals, Defendant Younan was represented by at least six attorneys prior to trial, two that withdrew due to irreconcilable conflicts with Defendant Younan. The indictment was issued by the County Grand Jury on June 18, 2009. Defendant Younan signed a waiver of counsel and undertook self-representation on July 23, 2012. The trial began on August 6, 2012, over three years after the case was charged. On the second day of trial, Defendant Younan requested the Court substitute advisory counsel as counsel of record because he did not want to continue representing himself. That attorney had prepared for trial and indicated to the court he was prepared to go forward and represent Defendant Younan at trial. When Defendant Younan argued on direct appeal that the court erred in failing to appoint new counsel for him immediately before trial, the Court of Appeals stated as follows.
Although Younan and his counsel disagreed about trial strategy and whether to file certain motions, counsel spent days with Younan reviewing the State's evidence before trial - maintaining far more than minimal contact. Additionally, given Younan's proclivity to change counsel, nothing in the record suggests he would not assert the same disagreement with yet another attorney. Finally, Younan's trial counsel actively participate in voir dire, made numerous objections to the State's evidence, thoroughly cross-examined the States' most significant witnesses (sometimes for days), and made lengthy closing arguments to the jury.
Defendant fails to specify how his case was prejudiced by the denial of his motion to continue. When he undertook self-representation, the Court advised him of his duties and obligations. He stated he was aware and wanted to proceed to represent himself. The Court finds no basis for post-conviction relief on this ground.(ECF No. 9-6 at 97-98).
Younan arguably exhausted a claim that his Sixth Amendment right to the effective assistance of counsel was violated because the trial court's denial of a continuance meant Younan was ineffective as his own counsel. The state court's denial of relief on this claim was not an unreasonable application of Strickland. The guarantee of the effective assistance of counsel does not apply to those who choose to represent themselves. See Faretta v. California, 422 U.S. 806, 834 (1975) (“Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.'”). Furthermore, on the second day of trial Younan elected to have Mr. Countryman return to his position as defense counsel, and Younan does not establish, nor does the record reflect that Mr. Countryman's ability to defend Younan at trial was affected by the denial of the motion to continue. Additionally, the trial court at no time denied Younan access to counsel, nor did the trial court deny Younan his right to self-representation. To the extent Younan contends that the trial court's denial of a continuance two weeks prior to a trial which had been continued through four substitutions of counsel over a period of three years constituted error, the denial of this claim was not clearly contrary to federal law. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.”). A continuance may be denied even where it results in the defendant being unrepresented at trial. United States v. Thompson, 587 F.3d 1165, 1174 (9th Cir. 2009) (listing factors to be balanced when a decision to grant or deny a continuance implicates a defendant's Sixth Amendment right to counsel, including “whether the continuance would inconvenience witnesses, the court, counsel, or the parties; [] whether other continuances have been granted; [] whether legitimate reasons exist for the delay; [] whether the delay is the defendant's fault; and [] whether a denial would prejudice the defendant”).
5. Brady claim
Younan contends the prosecution violated his rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (ECF No. 1 at 16-21). He contends the State failed to provide “Recordings of All Petitioner's jail calls. All, ” and “All Co-Defendants jail calls. Not transcripts.” (ECF No. 1 at 16). He further contends he should have been provided the “jail phone calls of the informant the State placed Petitioner next to, to get information from Petitioner,” and the prosecutor's emails and the emails of “[a]ll [of] the Detective(s) involved.” (ECF No. 1 at 17). He also asserts he was entitled to disclosure of the emails of “D.O.C. officials,” “M.C.S.O. officials,” “All the Members of A.C.T.I.C.,” and the emails of “Phoenix Police Department officials,” “D.P.S. officials,” and “[t]he female detective that the State hooked Petitioner up with to get information from Petitioner.” (Id.). He further asserts he was entitled to court security-camera footage of the testimony of a codefendant and MCSO security camera footage of a co-defendant “going and coming to court with another state informant.” (Id.). Younan further asserts he was entitled to court transcripts that “went ‘missing,'” which purportedly proved “the alleged ‘victim,' Det. [] Alley lied under oath numerous times,” and copies of letters he wrote to a private investigator, and records of jail phone calls of a co-defendant purportedly contradicting the co-defendant's trial testimony. (ECF No. 1 at 17-20).
In his state habeas action Younan asserted a Brady claim based on the State's purported withholding of recorded jail conversations between Younan and others “which showed that he was not involved in the group's plans or other criminal activity.” (ECF No. 9-6 at 35). Younan did not allege he should have been provided, inter alia, with all of the documents and recordings enumerated in his § 2254 habeas pleadings. Accordingly, with regard to these other documents and recordings, the operative factual predicate for Younan's § 2254 Brady claim regarding these items was not properly exhausted in the state courts. As with his other procedurally defaulted habeas claims, Younan fails to show cause for or prejudice arising from his procedural default of his Brady claims regarding the emails, video recordings, jail phone calls of his co-defendants, etc.
With regard to the one exhausted Brady claim, the state habeas trial court concluded Younan's claim regarding the State's alleged failure to disclose the purported Brady material was precluded under Rule 32.2(a) because no Brady claim was raised on appeal. (ECF No. 9-6 at 98-99). Accordingly, this claim was procedurally defaulted under an adequate and independent state procedural rule, and again Younan fails to establish cause or prejudice with regard to his procedural default of this claim. Younan also fails to establish a fundamental miscarriage of justice will occur with regard to any of his procedurally defaulted Brady claims.
6. Ineffective assistance of counsel re intentional and gross negligence
Younan asserts his trial counsel, Mr. Countryman, was ineffective because he was “intentionally and grossly negligent.” (ECF No. 1 at ¶ 22-39). He contends his trial counsel refused to investigate the “truth as to how court records went ‘missing. '” (ECF No. 1 at 22). He asserts counsel failed to investigate the confiscation of letters exchanged by Younan and a private investigator hired to assist Younan with a civil matter; failed to investigate search warrants and evidence “plant[ed]” by the private investigator; failed to investigate how a jail informant obtained the addresses of Younan's family; failed to investigate a prosecutor listening to his jail legal calls; failed to investigate “how” Detective Alley added “fake” felonies to Younan's criminal record “to enhance” his sentence; refused “to change venue/judge;” refused to file pro per motions; refused to obtain the emails of the prosecutors and the detectives involved in his case; refused to help Younan “get and go through his Discovery;” refused to prepare Younan for trial; refused to investigate a “codefendant;” refused to impeach his co-defendants; refused to object to particular testimony; refused “to ask any detrimental questions during trial;” failed to move to exclude witnesses under Rule 8 of the Arizona Rules of Criminal Procedure (apparently meaning Rule 615 of the Arizona Rules of Evidence); failed to object to the testimony of a witness who was not disclosed; elicited testimony from Younan that he was or had been housed in solitary confinement; and did not disclose what jurors told counsel during an interview with the jurors after a verdict was entered. (ECF No. 1 at 22-35).
The state habeas court denied the ineffective assistance of counsel claims properly presented in Younan's counseled post-conviction petition, citing Stricklandv. Washington and concluding Younan failed to establish that counsel's performance was deficient or that he was prejudiced by any alleged error. (ECF No. 9-6 at 99-101). The trial court first noted:
. Younan failed to demonstrate his attorney was ineffective, that the performance of his attorney was deficient or unreasonable, or that he suffered any prejudice. . On the specific allegations, the Court finds as follows.
1. Defendant failed to establish trial counsel was ineffective because he failed to file motions prepared by Defendant Younan. Defendant Younan does not reference any specific motion that he wanted counsel to file and does not cite to the record to support his contention that he raised this issue with the comt at trial. Defendant was not reticent to speak up throughout the trial and raise issues directly with the court. If there was a motion that was not filed, Defendant would surely have raised it with the comt. Trial counsel makes decisions regarding case strategy guided by his experience, skill, and analysis. State v. Lee, 142 Ariz. 210, 215 (1984). Defendant has not factually supported hi claim or shown he suffered prejudice. There is no basis for postconviction relief on this ground.
2. Regarding the transcription of the jail calls, Defendant has not provided any actual support for his allegation that the jail calls were not fully and properly transcribed. The Powerpoint presentation trial counsel used in closing argument (docket # 508) suggests that Defendant did receive the transcriptions of the jail calls. As previously stated, Defendant had an opportunity to testify regarding those calls as did the other co-conspirators who participated in those calls. Defendant has had years to review those transcripts and has not provided the court with any specific errors in the transcripts presented to the jury. Defendant's claim is factually unsubstantiated and Defendant failed to show any prejudice. The Court finds no basis for post-conviction relief on this ground.
3. Similarly, Defendant failed to establish any reference to the record related to this claim that there was a violation of the rnle to exclude witnesses, Arizona Rules of Evidence 15. Defendant's claim is factually unsubstantiated and he failed to show any prejudice. Since there was apparently no objection at trial the issue is waived and precluded. Rule 32.2(a), Ariz. R. Crim. P. There is no ground for post-conviction relief on this ground.
4. Regarding the allegation that trial counsel was ineffective for failing to object to the testimony of Defendant's probation officer, Robert Brouse, the disclosure notice dated July 28, 2009 listed the probation officer under the expert witnesses category. While the probation officer's name is not stated on the disclosure notice, Defendant was aware the State would call his probation officer to testify at trial. Defendant's claim is not factually supported and Defendant failed to show any prejudice. The Court finds no basis for post-conviction relief on this ground.
5. Defendant does not cite to any transcript regarding his claim that trial counsel argued to the jury during closing argument that he was in solitary confinement nor does he explain how he was prejudiced by the statement. If an argument was made, it would be deemed to be a matter of trial strategy. See State v. Lee, 142 Ariz. 210,215 (1984) (the power to decide questions of trial strategy rests with trial counsel; tactical decisions normally
will not constitute deficient performance under Strickland v. Washington, 466 U.S. 668 (1984)). The jury was aware Defendant was in custody because of the evidence presented regarding the jail calls with co-conspirators. The Court finds no basis for post-conviction relief on this ground.
6. Finally, the Court finds Defendant Younan failed to establish his trial counsel was ineffective for any of the reasons stated and certainly did not establish the cumulative effect of trial counsel's representation was ineffective. Defendant failed to factually support his claims of ineffective assistance or show any prejudice. The Court finds no ground for postconviction relief on this issue.(ECF No. 9-6 at 100-01).
With regard to the claims of ineffective assistance of counsel raised in Younan's pro se declaration, the trial court summarized the claims as follows:
2. Trial counsel would not help him “get and go through” discovery.
***
5. Trial counsel did nothing about the prosecutor listening to Defendant's “legal calls” while he was in jail.
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8. Trial counsel covered up hearing the prosecutor tell a codefendant what to say on the stand.
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13. Trial counsel coached a state informant as to what to say on the stand.
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16. Defendant's appellate counsel told him a judge on the Court of Appeals told her to “sell Defendant out” and to pick two weak argument to argue on appeal.
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18. Trial counsel told the trial judge that Defendant would take a plea but Defendant never told anyone he would take a plea because he is not guilty.
19. All of the attorneys appointed to represent him, including his postconviction counsel, are fake defense attorneys appointed to cover up the crimes, commit constitutional rights violations, and conceal the truth.(ECF No. 9-6 at 101-02). The court found the claims unsupported, defaulted, and without merit:
Defendant failed to provide any factual support for his allegation and does not cite to the court record to support these allegations. Most of Defendant's allegations are precluded under Rule 32.2(a), Ariz. R. Crim. P., because the matters were not raised at trial or on appeal. In fact, many of the factual
assertions are contradicted by the court record or, even if true, would not have changed the outcome of the proceeding and thus Defendant was not prejudiced at trial. The Court finds no basis for post-conviction relief on any of the unsupported claims made in Defendant Younan's declaration.(ECF No. 9-6 at 102).
The state court's denial of Younan's ineffective assistance of counsel claims was not contrary to nor an unreasonable application of Strickland. Younan presents only conclusory allegations regarding any prejudice arising from counsel's alleged errors, and conclusory allegations are insufficient to support a Strickland claim. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (finding “conclusory suggestions that [petitioner's] trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation”); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). See also Bragg v. Galaza, 242 F.3d 1082, 1088-89 (9th Cir. 2001) (finding no ineffective assistance based on failure to investigate and question witness where there was no indication of what additional information could have been gained); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (holding a defendant cannot satisfy the Strickland standard by “vague and conclusory allegations that some unspecified and speculative testimony might have established his defense.”). The “facts” alleged by Younan as supporting his claims are conclusory, devoid of specifics, and unsupported by any evidence. Given the weight of the evidence against Younan at his trial, including the testimony of his co-defendants and the recorded jail phone calls, and the fact that he testified in his own defense over a period of 15 hours and therefore had the opportunity to deny all of the claims against him (rendering the verdict of one predicated on his own credibility), the state court could reasonably find that, even if counsel's performance was unreasonably deficient, Younan was not prejudiced by any errors. See Wainwright v. Sykes, 433 U.S. 72, 91 (1977) (“A petitioner suffers no actual prejudice when ‘[t]he other evidence of guilt presented at trial ... was substantial to a degree that would negate' the alleged prejudice caused by the allegedly unconstitutional action.”). Accordingly, the state courts' denial of relief on Younan's ineffective assistance of counsel claims was not an unreasonable application of Strickland. Furthermore, most of Younan's assignments of error fall within matters of counsel's defense strategy. Counsel's choice of a reasonable defense strategy, and any decisions made regarding the implementation of that strategy, are “virtually unchallengeable.” Strickland, 466 U.S. at 690. See also Ayala v. Chappell, 829 F.3d 1081, 1103 (9th Cir. 2016). It is well settled that “counsel's tactical decisions at trial ... are given great deference and must similarly meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006) (“trial counsel is typically afforded leeway in making tactical decisions regarding trial strategy”).
Younan also alleges his appellate counsel's performance was ineffective because she failed to file a reply to the State's appellate brief and “refused to address any justifiable issues,” such as the ineffective assistance of his trial counsel. (ECF No. 1 at 36-39). Younan's claim of ineffective assistance of appellate counsel is not colorable. The proper means of pursuing a claim of ineffective assistance of trial counsel is a state petition for post-conviction relief rather than on appeal. Additionally, there is no requirement that a reply brief be filed pursuant to Rule 31.13(c)(3) of the Arizona Rules of Criminal Procedure and, accordingly, counsel's performance was not beyond prevailing professional norms for failing to file a reply brief. A reply brief is meant only to address any new issues arising out of the responsive brief filed by the State. A review of the record in this matter indicates that the issues were thoroughly briefed through the opening appellate brief and the responsive brief by the State. A reply brief would have served no function. Even assuming that a reply brief could have been filed, Younan fails to make a showing that filing a reply brief would have changed the outcome of the appellate decision and, accordingly, he has not demonstrated prejudice arising from his appellate counsel's allegedly deficient performance.
7. Judicial bias and error
Younan asserts his rights to due process and a fair trial were by violated by the trial court's “abuse of judicial discretion,” bias, and “misconduct” (ECF No. 1 at 40-43). He contends the trial judge was biased, did not allow him to speak to his counsel, did not allow him to “go through his discovery,” forced him to “listen to his jail calls during trial,” and covered-up malfeasance by the crime investigators, the prosecutor, and defense counsel. (Id.).
Younan failed to properly exhaust his federal habeas claim of judical bias and error in the state courts. The only claims of trial court error fairly presented to the Arizona Court of Appeals in a procedurally correct manner were those presented in Younan's appeal, i.e. the denial of his pretrial motion to dismiss, the denial of his request for new counsel on the eve of trial, the denial of his motion to sever Count 4 during trial, and the denial of his motion for a mistrial. The Arizona Court of Appeals considered and denied relief on those claims. The only claims of trial court error raised as such in Younan's state post-conviction action were those raised in Younan's “declaration” in that action. In denying the claims, the state habeas trial court found and concluded that any claims of trial court error were waived and precluded by his failure to raise the claims on appeal, citing Rule 32.2(a) of the Arizona Rules of Criminal Procedure. (ECF No. 9-6 at 102). As with his other procedurally defaulted claims, Younan fails to establish cause for or prejudice arising from his default of his federal habeas claims of trial court bias and error, and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits of these claims.
8. “Cruel, Inhuman, degrading punishment and treatment. Torture.”
Younan alleges he was subjected to “cruel, inhuman, degrading punishment and treatment” and “torture,” in violation of his Sixth, Eighth, and Fourteenth Amendment rights and the “Geneva Conventions Against Torture.” (ECF No. 1 at 44). He asserts he was tortured in an attempt to get him to confess to the charged crimes. This claim is both procedurally defaulted and too vague and conclusory to warrant federal habeas relief.
Younan contends: “Petitioner was tortured; Physically and mentally by and under the request of state officials to try to optain [sic] a false confession. Case Agent Det. Armondo Saldate is on record bragging about having Petitioner tortured.” (ECF No. 1 at 44).
In his state habeas action Younan asserted he was held incognito for six months at a C.I.A. “Blacksight” where he was tortured to obtain a false confession. (ECF No. 9-6 at 53-54). The state court denied relief, finding Younan failed to provide any factual support for his allegation and that the claim was procedurally defaulted. Younan fails to establish cause for or prejudice arising from any procedural default of this claim. Furthermore, as in his state court action, Younan fails to provide any specific facts or proffer any evidence in support of this claim for relief. Habeas petitioners must plead their claims with particularity and must specify all grounds for relief and the facts supporting those grounds. See Rule 2(c), Rules Governing § 2254 Cases. Habeas Corpus Rule 2(c) is more demanding than Rule 8 of the Federal Rules of Civil Procedure. Rule 2(c) provides that the petition must not only “specify all the grounds for relief available to the petitioner,” the petition must also “state the facts supporting each ground.” See also 1976 Advisory Committee's Note on Adoption, Habeas Corpus Rule 2 subsection(c) (“In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. Since it is the relationship of the facts to the claim asserted that is important, these petitions were obviously deficient.”); 1976 Advisory Committee's Note on Adoption, Habeas Corpus Rule 4 (“‘[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.” (internal quotation marks omitted)). See also Mayle v. Felix, 545 U.S. 644, 655 (2005).
Because Younan's § 2254 petition fails to provide a sufficient factual basis for this claim and he fails to plead this claim with particularity, the claim is not properly presented and relief on this claim may be denied on this basis.
9. Actual innocence
Younan asserts he is “completely] and utter[ly] innocen[t]” (ECF No. 1 at 45). His sole factual allegation in support of this claim is that “[n]o one ever conspired to kill anyone. And there was never a syndicate.” (Id.).
This claim may be denied on the merits because it fails to state a cognizable claim for relief. In McQuiggin v. Perkins the Supreme Court declared that it had not “resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” 569 U.S. 383, 392 (2013), citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993). The Supreme Court has postulated that a claim of actual, factual innocence based on newly discovered evidence might be cognizable, but only in capital cases. See Herrera, 506 U.S. at 417. Notably, Younan does not present any evidence, newly discovered or otherwise, contravening the evidence presented at his trial. Because this is not a capital case and Younan does not point to any evidence establishing his factual innocence, but instead asserts there was insufficient evidence presented at his trial to establish guilt, he fails to state a cognizable claim on which habeas relief may be granted.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 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.
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. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Younan seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.