SUSAN R. BOLTON, District Judge.
Petitioner Jeremy Dean Garcia filed his Petition for Writ of Habeas Corpus on June 12, 2012 raising six grounds for relief. Petitioner claims: 1) there was insufficient evidence to support his conviction on several counts; 2) trial counsel was ineffective because she pressured him not to testify at trial; 3) trial counsel was ineffective because she failed to call character witnesses on Petitioner's behalf; 4) trial counsel was ineffective because she failed to request a Willits instruction; 5) the trial court erred in sentencing defendant pursuant to A.R.S. § 13-604.01; and 6) trial and appellate counsel were both ineffective because they failed to challenge his sentences and appellate counsel was also ineffective by failing to raise Petitioner's claim regarding his desire to testify at trial. Respondents filed a limited answer asserting that Petitioner's claims were procedurally defaulted and barred from federal habeas corpus review or were not cognizable on federal habeas corpus review. Petitioner's reply argued that if there were a procedural fault there was cause to excuse it.
On July 16, 2013, the Magistrate Judge filed her Report and Recommendation recommending that the Petition be denied and further recommending that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Petitioner filed timely written objections on August 2, 1013.
Ground I - Sufficiency of the Evidence
The Magistrate Judge concluded that Petitioner's request for federal habeas corpus review based on sufficiency of the evidence should be denied because Petitioner's sufficiency of the evidence claim was based only on state law grounds and federal habeas corpus relief is not available for alleged violations of state law or for alleged error in the interpretation of state law. Petitioner's objection to the Magistrate Judge's recommendation on Ground I is that it is his position that his conviction and detention were "based upon acts not legislatively delineated as to give notice of their prohibition is violative of due process under both federal and state analysis, must be subject to review by the federal courts." (Doc. 20, Pet'r's Objections to the Proposed Findings and Recommendations ("Pet'r's Objection") at 2).
Petitioner's objection will be overruled. Petitioner presented this state law claim on appeal and based his claim only on state law grounds. His habeas petition also based his sufficiency of the evidence claim only on state law grounds. For the first time in his objections Petitioner states his position that Arizona state law did not give him sufficient notice that the acts for which he was convicted were prohibited and his opinion that that is a federal due process violation. In addition to stating no authority for his opinion, the basis for the denial of habeas relief on Ground I, as noted by the Magistrate Judge, was that Petitioner presented this as a state law claim on appeal and in his habeas petition. Even if his opinion were supported by any authority, Petitioner cannot raise a federal claim for the first time in his objections.
Ground II - Ineffective Assistance of Counsel
Petitioner raised this claim in state court on post-conviction review. The trial court found that his claim that his lawyer applied overbearing pressure to prevent him from testifying at trial was not supported by the trial transcript. Instead, the trial transcript showed that the trial judge had reviewed with Petitioner his right to testify and advised Petitioner that it was Petitioner's decision whether to testify and not his counsel's. Petitioner advised the court that he did not wish to testify. On this basis the state court rejected this claim of ineffective assistance of counsel. The Magistrate Judge also noted that the appellate court in affirming the trial court found that Petitioner failed to explain how his counsel prevented him from testifying and Petitioner provided no information about how he would have testified at trial. The appellate court concluded that Petitioner had not established that but for counsel's deficient performance there was a reasonable probability that the outcome of his trial would have been different.
The Magistrate Judge observed that Petitioner did not challenge the state court's conclusion about the trial transcript reflecting that he waived his right to testify after a discussion with the trial judge. Petitioner also failed to provide any specific information in his Petition regarding the substance of the testimony he would have given at trial. The Magistrate Judge concluded that Petitioner failed to show that the state court's decision on post-conviction relief was contrary to clearly established law, based on an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts considering the evidence presented in the state court proceeding.
In his Objection to the recommendation for denial of relief on Ground II, Petitioner states only that his testimony was vital to his defense and without such testimony "to contravene the state's version of events was fatal to said defense thereby rendering his assistance of counsel ineffective." ( Id. at 2). He argues that the Court should infer that his testimony at trial would have been that the accusations against him were fabricated. While this Court may conclude that generally Petitioner would have denied the allegations against him, Petitioner still fails to show that he was prejudiced as a result of counsel's allegedly deficient performance or fails to show that the findings of the state court were based on an unreasonable determination of the facts considering the evidence presented. Petitioner's objection to the recommendations with respect to Ground II is overruled.
Ground III - Ineffective Assistance of Counsel
The ineffective assistance of counsel claim in Ground III is that trial counsel was ineffective because she failed to present several unidentified character witnesses on Petitioner's behalf. This was noted on post-conviction review when the state court found that by failing to specify how the character witnesses would have testified Petitioner failed to show that but for counsel's alleged deficient performance there was a reasonable likelihood that the outcome of the trial would have been different.
The Magistrate Judge concluded that Petitioner had not shown that the state court's resolution of this claim was contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires that Petitioner show that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the Petitioner. In his Objections to the Magistrate Judge's recommendation for denial of relief on Ground III, Petitioner states that the character witnesses were to send sworn statements to the court under separate cover. He also states that Petitioner's understanding was that all these witnesses were willing and able to testify as to his good character. But Petitioner knew, based on the state court's resolution this claim, that there were no sworn statements sent to the court under separate cover in support of his claim of ineffective assistance of counsel.
This Court's review on a federal habeas petition requires Petitioner to show that the state court's rejection of his claim of ineffective assistance of counsel was contrary to clearly established federal law, was based on an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts considering the evidence presented in state court. Petitioner has not met that standard here. His ...