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Harvey v. Ryan

United States District Court, Ninth Circuit

June 28, 2013

CHARLES RYAN, et al., Respondents.


CINDY K. JORGENSON, District Judge.

On September 28, 2011, Magistrate Judge Jennifer C. Guerin issued a Report and Recommendation ("R & R") [Doc. 23] in which she recommended that this Court deny Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The R & R provided that any party could file written objections within fourteen (14) days after being served with a copy of the R & R. On January 13, 2012, Petitioner filed his Motion to Allow Objection to Magistrate's Report and Recommendation [Doc. 30]. On January 19, 2012, the Court granted Petitioner's motion and his Objection to Magistrate's Report and Recommendations [Doc. 33] was filed the same day. The Government filed its Response to Petitioner's Objections to Report and Recommendation of Magistrate Judge [Doc. 91] on January 27, 2012.


The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); See also, Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).


The factual background contained in Magistrate Judge Guerin's R & R [Doc. 23] is uncontested. As such, it is adopted by reference herein.


Petitioner objects to the Magistrate Judge's R & R [Doc. 23] on several grounds. First, he asserts that the Magistrate Judge's legal analysis regarding exhaustion incorrectly concludes that he is not entitled to relief. See Pet.'s Obj. to Magistrate's R & R [Doc. 33] at 2. Second, Petitioner asserts that the Magistrate Judge's findings regarding his failure to present Grounds 4, 5, 7, 9, 10, 12(a), 12(b), and 12(c) to the state court are incorrect. Id. at 3-4. Third, Petitioner urges that the Magistrate Judge incorrectly determined that he failed to demonstrate "cause and prejudice" to overcome the exhaustion requirement. See id. at 4-5. Fourth, Petitioner asserts that the Magistrate Judge erred in finding that the trial court precluded witness testimony due to unreliability, and that he is entitled to an evidentiary hearing because the Magistrate Judge failed to comment on the trail court's refusal to grant a trial continuance. Id. at 6-8. Fifth, Petitioner asserts that the Magistrate Judge erred by not addressing the untimely motion to preclude expert witness. Id. at 8. Sixth, Petitioner finds error in the Magistrate Judge's "determin[ation] that Petitioner admitted to any prior conviction[.]" Pet.'s Obj. To Magistrate's R & R [Doc. 33] at 8. Seventh, Petitioner asserts error regarding a finding that "Petitioner can be convicted of aggravated assault on a person he didn't know was a police officer nor didn't assault." Id. at 9. Finally, Petitioner urges that trial counsel was ineffective for not investigating Petitioner's Post-Traumatic Stress Disorder or "Al Cheney the man with knife[, ]" because his closing arguments were poor, and he failed to object to jury instructions. Id. at 10-11. Petitioner argues that the Magistrate Judge's findings to the contrary were in error. Id. For the reasons discussed below, Petitioner's contentions are without merit.

A. Exhaustion and Presentment

Petitioner takes issue with the Magistrate Judge's legal analysis regarding exhaustion and findings that he failed to present Grounds 4, 5, 7, 9, 10, 12(a), 12(b), and 12(c) to the state court. See Pet.'s Obj. to Magistrate's R & R [Doc. 33] at 2-4.

1. Exhaustion of State Remedies

Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This "provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives the State "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine of comity which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).

Section 2254(c) provides that claims "shall not be deemed... exhausted" so long as the applicant "has the right under the law of the State to raise, by any available procedure the question presented." 28 U.S.C. § 2254(c). "[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court "to the presence of a federal claim" in his petition, simply labeling a claim "federal" or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been "fairly presented" because his brief in the state appeals court did not indicate that "he was complaining about a violation of federal law" and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 529 U.S. 1009 (2000) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to "fairly present" one's claims, the prisoner must do so "in each appropriate state court." Id. at 29, 124 S.Ct. at 1349. Additionally, "all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies." Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is "[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]" Id.

"Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state." Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). In Arizona, however, for "cases not carrying a life sentence or the death penalty, review need not be sought before the Arizona Supreme Court in order to exhaust state remedies." Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

2. Procedural default

"A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer available' to him." Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991). Moreover, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id., 501 U.S. at 728 , 111 S.Ct. at 2554. This is true whether the state law basis is substantive or procedural. Id. (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

The Ninth Circuit explained the difference between exhaustion and procedural default as follows:

The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. see Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) ("A claim is procedurally defaulted if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991))).

Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). Thus, a prisoner's habeas petition may be precluded from federal review due to procedural default in two ways. First, if the petitioner presented his claims to the state court, which denied relief based on independent and adequate state grounds. Coleman, 501 at 728, 111 S.Ct. at 2254. Federal courts are prohibited from review in such cases because they have "no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory." Id. Second, where a "petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the federal court "must consider whether the claim could be pursued by any presently available state remedy." Cassett, 406 F.3d at 621 n.6 (quoting Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (emphasis in original).

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (recognizing "that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial."). "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause "for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims."). In addition to cause, a habeas petitioner must show actual prejudice, meaning that he "must show not merely that the errors... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.

In Arizona, a petitioner's claim may be procedurally defaulted where he has waived his right to present his claim to the state court "at trial, on appeal or in any previous collateral proceeding." Ariz. R. Crim. P. 32.2(a)(3). "If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant knowingly, voluntarily and intelligently' waived the claim." Id., 2002 cmt. Neither Rule 32.2 nor the Arizona Supreme Court has defined claims of "sufficient constitutional magnitude" requiring personal knowledge before waiver. See id.; See also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth Circuit recognized that this assessment "often involves a fact-intensive inquiry" and the "Arizona state courts are better suited to make these determinations." Cassett, 406 F.3d at 622.

3. Ground Four, Ineffective Assistance of Counsel

a. Exhaustion of Ground Four

Petitioner's Ground 4 asserts ineffective assistance of counsel due to counsel's "failure to understand, prove or argue good driving or reasonably argue against bad driving or flight[.]" Petition [Doc. 1] at 11. Petitioner's Ground 4 also includes allegations of ineffective assistance of counsel due to a failure to call an "expert witness as to high stress situations' and there [sic] effect on the mind and body" including "being hit at 45 M.P.H. by a much heavier car directly into the side door." Id. at 12. In their Answer [Doc. 13], Defendants assert that the "list of nine specific deficiencies... were not presented to the appellate court[]" and therefore Ground 4 is not exhausted. Answer [Doc. 13] at 15. The magistrate judge found that Petitioner presented Ground 4 "only in his petition for review by the Arizona Court of Appeals of the trial court's denial of Petitioner's Rule 32 petition." R & R [Doc. 23] at 8. As such, the magistrate judge found that Ground 4 was not fairly presented, thereby concurring with Defendants that Petitioner had failed to exhaust Ground 4. Id. The magistrate judge further found Ground 4 was therefore procedurally defaulted. Id. at 9.

This Court agrees regarding the expert witness testimony. See Moormann v. Schriro, 426 F.3d 1044, 1056-57 (9th Cir. 2005), cert. denied, 548 U.S. 927 (2006) (new allegations of ineffective assistance of counsel not previously raised before the state court cannot be addressed on habeas review). It disagrees, however, regarding "good driving" arguments. Although Petitioner obliquely referenced trial counsel's failure to "introduce[] []or argue[] rebuttal evidence to substantiate that flight was not Petitioner's state of mind." Pet.'s Petition for PCR, Defs.' Answer [Doc. 13], Exh. "H" at 30. His Petition for Review to the Arizona Court of Appeals directly addressed the issue of trial counsel's "failure to understand, prove or argue there was no bad driving (no flight) through the alley []as Strickland error[.] Defs.' Answer [Doc. 13], Exh. "N" at 5-6. Moreover, the Arizona Court of Appeals squarely addressed the issue in its February 26, 2009 Memorandum Decision. See Defs.' Answer [Doc. 13], Exh. "B" at ¶¶ 4-6. Accordingly, Petitioner fairly presented the portion of Ground 4 related to "good driving" and "flight" to the Arizona state courts and it is exhausted.

b. The Merits of Ground 4 Related to "Good Driving" and "Flight"

The federal courts shall "entertain an application for a write of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. " 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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.

28 U.S.C. § 2254(d); see also Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, "[t]he statute's design is to further the principles of comity, finality, and federalism.'" Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S.322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, dictates the standards for federal habeas review. See 28 U.S.C. § 2254. "The Act limits the ability of federal courts to reexamine questions of law and mixed questions of law and fact." Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997). Federal courts reviewing a petition for habeas corpus must "presume the correctness of state courts' factual findings unless applicants rebut this presumption with clear and convincing evidence.'" Landrigen, 550 U.S. at 473-74 , 127 S.Ct. at 1940 (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473-74 , 127 S.Ct. at 1939. Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it arrives at a different result. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); See also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004).

The Supreme Court elucidated a two part test for determining whether a defendant could prevail on a claim of ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Harvey must show that counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064. "This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, Harvey must show that this performance prejudiced his defense. Id. Prejudice "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable." Id. Ultimately, whether or not counsel's performance was effective hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; See also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth Amendment's guarantee of effective assistance is not meant to "improve the quality of legal representation, " rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

"Judicial scrutiny of counsel's performance must be highly deferential." Id. Judging counsel's performance must be made without the influence of hindsight. See id. As such, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). Without the requisite showing of either "deficient performance" or "sufficient prejudice, " Harvey cannot prevail on his ineffectiveness claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. "[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential ...

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