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Garcia v. Ryan

United States District Court, Ninth Circuit

July 15, 2013

Jeremy Dean Garcia, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

BRIDGET S. BADE, Magistrate Judge.

Petitioner Jeremy Dean Garcia has filed a timely Petition for Writ of Habeas Corpus raising six grounds for relief. (Doc. 1.) Respondents filed a Limited Answer asserting that Petitioner's claims are procedurally defaulted and barred from federal habeas corpus review or are not cognizable on habeas corpus review.[1] (Doc. 13.) Petitioner has filed a reply arguing "cause" to excuse his procedural default. (Doc. 17.) For the reasons below, the Petition should be denied.

I. Factual and Procedural Background

On June 28, 2007, Petitioner was charged in a twenty-six count indictment with various counts of sexual abuse, attempted child molestation, child molestation, and sexual conduct with a minor. (Respondents' Ex. A at 4; Ex. H at 1.)[2] The indictment alleged that between September 2000 and April 2006 Petitioner engaged in sexual behavior with five minors - his two daughters (A and B), two of his daughters' friends (K and T), and his daughters' former babysitter (J). (Respondents' Ex. A at 2.) Following a trial, the jury acquitted Petitioner of three counts of sexual molestation of K and three counts of sexual abuse of K. ( Id. at 4.) The jury found Petitioner guilty of the remaining counts. ( Id. ) At the sentencing hearing, the court entered a judgment of acquittal as to an additional count of sexual abuse of K. ( Id. ) The trial court imposed a combination of concurrent and consecutive sentences totaling 132 years' imprisonment. ( Id. )

A. Direct Appeal

Petitioner filed a direct appeal asserting that there was insufficient evidence to support ten of his convictions. (Respondents' Exs. A and B.) He also argued that his sentences on the attempt charges against victim A in counts three, five, and six were not statutorily authorized by the Dangerous Crimes Against Children Act (DCAC), Arizona Revised Statute § 13-705, former Ariz. Rev. Stat. § 13-604.01, because the victim was under the age of twelve. (Respondents' Ex. B at 20-23.)

The appellate court found that Petitioner's sufficiency of the evidence claims and his challenges to his sentences on counts three and five lacked merit. (Respondents' Ex. A.) The court granted relief on Petitioner's claim that his sentence on count six was improper because Ariz. Rev. Stat. § 13-705 only encompassed sexual conduct with a minor who is "twelve, thirteen or fourteen years of age." (Respondents' Ex. A at 17.) The court remanded to the trial court for the State to establish the victim's age and for resentencing on count six "if necessary." ( Id. at 18.) Petitioner did not seek review in the Arizona Supreme Court. On April 15, 2009, the trial court resentenced Petitioner on count six to three-and-a-half years' imprisonment to run consecutively to his sentences on counts one, two, and twenty-six, and to run concurrently with his sentences on counts three, four, and five. (Respondents' Ex. F.)

B. Post-Conviction Review

While his direct appeal was pending, Petitioner filed a notice of post-conviction relief in the trial court pursuant to Arizona Rule of Criminal Procedure 32. (Respondents' Exs. G, H.) Petitioner was appointed counsel and moved to stay the filing deadline for the post-conviction relief petition pending the resolution of the appeal. (Respondents' Ex. H.) The trial court stayed the post-conviction proceeding pending completion of his direct appeal and resentencing. ( Id. ) After the stay was lifted, on May 10, 2010, post-conviction counsel filed a notice pursuant to Rule 32.4(c) informing the court that she had reviewed the record and found no colorable claim for relief. (Respondents' Ex. I.)

On August 25, 2010, Petitioner filed a pro se petition for post-conviction relief raising five grounds for relief. (Respondents' Ex. J.) Specifically, Petitioner argued that his sentences were not authorized by the DCAC statute because he was a first time offender. He also argued that trial counsel was ineffective for dissuading him from testifying, failing to request a Willits [3] instruction based on the inadvertent erasure of a recording of a victim interview, and for failing to call certain character witnesses on his behalf. ( Id. ) He further argued that trial and appellate counsel were ineffective for failing to challenge his sentences. ( Id. )

The trial court found that Petitioner's challenge to his sentences was precluded pursuant to Rule 32.2(a), and because he had raised the issue of his sentences on direct appeal. (Respondents' Ex. H at 2.) The court further found that none of Petitioner's claims of ineffective assistance of trial or appellate counsel presented a material issue of fact or law warranting post-conviction relief. ( Id. at 1-2.) Accordingly, the trial court denied post-conviction relief. ( Id. )

On March 2, 2011, Petitioner filed a petition for review in the Arizona Court of Appeals arguing the claims he had presented to the trial court and arguing for the first time that trial counsel was ineffective for failing to call an expert witness. (Respondents' Ex. M at 21.)

On June 30, 2011, the appellate court denied relief, affirmed the trial court's rulings, and found that the newly-raised claim of ineffective assistance of counsel was precluded pursuant to Arizona Rule of Criminal Procedure 32.9(c). (Respondents' Ex. N at 5 n.3.) Petitioner did not seek review in the Arizona Supreme Court. (Respondents' Ex. O.)

C. Federal Petition for Writ of Habeas Corpus

On June 12, 2012, Petitioner filed the pending petition for writ of habeas corpus raising the following grounds for relief: (1) there was insufficient evidence to support his convictions on several counts; (2) trial counsel was ineffective for pressuring him not to testify at trial; (3) trial counsel was ineffective for failing to call character witnesses; (4) trial counsel was ineffective for failing to request a Willits instruction; (5) the trial court should have sentenced Petitioner pursuant to Ariz. Rev. Stat. § 13-702(C) and § 13-702(A), rather than pursuant to former § 13-604.01, because he had no prior felony convictions; and, (6) trial and appellate counsel were ineffective for failing to challenge his sentences and appellate counsel was ineffective for failing to raise Petitioner's claim regarding "wanting to testify at trial." (Doc. 1.) As set forth below, Petitioner's claims are not cognizable on federal habeas corpus review, lack merit, or are procedurally barred from federal habeas corpus review.

II. Federal Court Review of State Court Decisions

This Court's review of Petitioner's claims is constrained by the applicable standard of review set forth in 28 U.S.C. § 2254(d). If a habeas corpus petition includes a claim that has been "adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d)(1), federal habeas relief is not available unless petitioner shows that the state court's decision: (1) "was contrary to" federal law as clearly established in the holdings of the United States Supreme Court at the time of the state court decision, Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 43 (2011); or (2) that it "involved an unreasonable application of" such law, § 2254(d)(1); or (3) that it "was based on an unreasonable determination of the facts" in light of the record before the state court. 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 785 (2011).

To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, courts look exclusively to the holdings of the Supreme Court that existed at the time of the state court's decision. Greene, 132 S.Ct. at 44. A state court's decision is "contrary to" federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza, 540 U.S. 12, 14 (2003) (citations omitted). A state court decision is an "unreasonable application of" federal law if the court identifies the correct legal rule, but unreasonably applies that rule to the facts of a particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). "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.'" Richter, 562 U.S. ___, 131 S.Ct. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Court will apply this standard to review the merits Petitioner's claims that are properly presented for federal habeas review.

III. Exhaustion and Procedural Bar

Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court[4] in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, ' the prisoner must "fairly present" her claim in each appropriate state court... thereby alerting the court to the federal nature of the claim"); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same).

A claim has been "fairly presented" if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. Baldwin, 541 U.S. at 33. A "state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or brief... that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, ... (2) through the proper vehicle, ... and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).

The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See Coleman, 501 at ...


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