REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on March 8, 2012, by Raul Santos Silvas, an inmate confined in the Arizona State Prison Complex in Kingman, Arizona. (Doc. 1)
Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for report and recommendation.
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition on the merits.
Summary of the Case
Santos Silvas was found guilty after a jury trial of aggravated robbery, armed robbery, theft of a means of transportation, and two counts of aggravated assault. (Doc. 11, p. 3) At the trial, the state introduced evidence that Santos Silvas and three others approached Coleman Fonville as he was sitting in his vehicle, assaulted him, and then stole the vehicle. (Doc. 11-2, p. 23) Later the same morning, Santos Silvas and at least eight others were causing a disturbance in the street when Virginia Bickett approached the group and asked them to "please hold it down." Id. Santos Silvas and another member of the group hit and kicked Bickett until a bystander intervened. Id. Bickett and her daughter contacted police providing them with a partial license plate of the vehicle Santos Silvas had been driving. Id. The police located the vehicle and arrested the driver, Santos Silvas. Id. The vehicle turned out to be the one stolen earlier from Fonville. Id.
The trial court sentenced Santos Silvas to terms of imprisonment totaling 23.75 years. (Doc. 11, p. 3)
On direct appeal, Santos Silvas argued the evidence was insufficient to support three of his convictions. (Doc. 11, p. 3) The Arizona Court of Appeals affirmed his convictions and sentences on March 19, 2009. (Doc. 11-2, pp. 22-27) The Arizona Supreme Court denied review on July 30, 2009. (Doc. 11-2, p. 40)
On August 31, 2009, Santos Silvas filed notice of post-conviction relief, but counsel was unable to find any meritorious issues to raise. (Doc. 11, p. 3) Santos Silvas subsequently filed his own petition pro se in which he argued, among other things, that (1) pretrial counsel was ineffective for failing to challenge the indictment, (2) trial counsel was ineffective for (a) failing to object to the prosecution's use of a photograph of Santos Silvas in handcuffs for identification purposes, (b) failing to aggressively cross-examine witnesses, and (c) failing to challenge the trial court's exclusion of a witness who would have testified that the victim witness, Bickett, was seeking a bribe in exchange for her silence, and (3) appellate counsel was ineffective for failing to challenge the trial court's use of a single sign language interpreter. (Doc. 11-3, pp 21, 24, 28) The trial court denied the petition on October 12, 2010. (Doc. 11-5, p. 2)
Santos Silvas filed a petition for review with the Arizona Court of Appeals arguing (1) pretrial counsel was ineffective for failing to challenge the sufficiency of the identification evidence and (2) trial counsel was ineffective for (a) failing to object to the use of a photograph of him in handcuffs, (b) failing to aggressively conduct cross-examination, (c) and failing to challenge the lack of identification evidence. (Doc. 11-5, pp. 24-2) The Arizona Court of Appeals granted review but denied relief on April 26, 2011. (Doc. 11-6, p. 2) His petition for reconsideration was denied on July 21, 2011. (Doc. 11, p. 4)
On October 13, 2001, Santos Silvas filed a second notice of post-conviction relief, but counsel was unable to find any meritorious issues to raise. (Doc. 11, p. 4) The court permitted time for Santos Silvas to file his own petition pro se. (Doc. 11, p. 4) The record does not contain any further information concerning this proceeding.
On March 8, 2012, Santos Silvas filed the pending petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) the trial court erred by proceeding with a single American Sign Language interpreter; (2) the trial court erred when it allowed Fonville to identify Santos Silvas from a photograph taken just after his arrest; (3) trial counsel was ineffective for (a) failing to object to the use of the arrest photograph and (b) failing to raise inconsistencies in the testimony of the arresting officers; (4) the trial court erred when it precluded the defense from offering the testimony of a Byron Broger to impeach the second victim, Virginia Bickett; (5)(a) his indictment was "based partially on perjured testimony"; and (5)(b) his pre-trial attorney was ineffective for failing to challenge the indictment.
In their answer, the respondents argue Santos Silvas' claims should be denied as procedurally defaulted or on the merits. (Doc. 11) In his reply, Santos Silvas argues his procedural default should be excused because appellate counsel and Rule 32 counsel "obviously overlooked these unconstitutional violations." (Doc. 17, p. 9)
The writ of habeas corpus affords relief to persons in state custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior 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). The petitioner must shoulder an additional burden if the state court considered the issues and made findings of fact.
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of ...