FRANK R. ZAPATA, Senior District Judge.
On June 3, 2010, Petitioner, Robert Michael Hollenback, an inmate confined in the Arizona State Prison Complex-Florence in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to Title 28, U.S.C. § 2254, with exhibits A through E attached. ("Petition"). (Doc. 1.) Respondents have filed an answer to the Petition ("Answer") with exhibits A through H attached. (Doc. 8.) Petitioner filed a reply ("Reply") on April 19, 2011. (Doc. 9). For the reasons discussed below, the Court (1) dismisses grounds one and two of the Petition as procedurally defaulted, alternatively, denies relief for grounds one and two on the merits; (2) denies relief for ground three on the merits; and (3) grants relief on ground four of the Petition.
A. Trial Court Proceedings
On March 28, 2003, Petitioner was indicted by the grand jurors of Pima County in Arizona Superior Court, on charges of one count each of molestation of a child, sexual conduct with a minor under fifteen years of age, and luring a minor for sexual exploitation. (Doc. 8, Ex. A, Indictment.). The State separately filed an allegation that all three counts as charged were offenses involving dangerous crimes against children, pursuant to A.R.S. § 13-604.01. ( Id., Allegations.) The State also filed allegations of a predicate offense and prior conviction of attempted sexual conduct with a minor under fourteen. ( Id. )
A jury convicted Petitioner on all three counts, and, on March 29, 2004, the trial court sentenced Petitioner to the presumptive terms of imprisonment on all counts: 28 years for count one; life imprisonment for count two; and 10 years for count three. ( Id., Minute Entry 3/29/04.) The trial court ordered that all counts be served consecutively. ( Id. )
Petitioner filed a direct appeal of his conviction and sentence raising five grounds for relief: (1) A.R.S. § 13-3554 is inapplicable to conduct that does not involve producing pornographic material; (2) the trial court erred in enhancing Petitioner's sentence using the State's late-requested interrogatory that asked the jury to determine whether the victims were under 12 years old; (3) fundamental error occurred when the trial court sentenced Petitioner in count two under A.R.S. § 13-604.01 and not A.R.S. § 13-702.02; (4) fundamental error occurred when the trial court sentenced Petitioner to life when that was not required under A.R.S. § 13-604.01(B); and (5) fundamental error occurred when 14 jurors deliberated. (Doc. 8, Ex. B.) The appellate court affirmed the convictions and sentences in an opinion filed on December 29, 2005. (Doc. 1, Ex. A). Petitioner's petition for review to the Arizona Supreme Court was denied without comment on September 26, 2006. ( Id., Ex. B).
C. Petition for Post-Conviction Relief
Petitioner's notice of post-conviction relief was filed on November 2, 2006. (Doc. 8, Ex. D.) Petitioner, through counsel, filed a Petition for Post-Conviction Relief ("PCR") on June 21, 2007. ( Id. ) Petitioner argued that trial counsel was ineffective for (1) failing to properly object to hearsay testimony; (2) failing to object to other act evidence; (3) failing to request a lesser included jury instruction of attempted molestation of a child; and (4) failing to call an expert witness on the effect of improperly conducted forensic interviews with children. ( Id. )
The trial court denied relief without an evidentiary hearing and dismissed the notice on December 20, 2007. (Doc. 1, Ex. C.) In his petition for review of the trial court's decision to the court of appeals, Petitioner argued that trial counsel was ineffective for (1) failing to object to the State's improper use of hearsay as substantive evidence; and (2) failing to request a lesser included jury instruction of attempted molestation of a child. (Doc. 8, Ex. E.)
On September 5, 2008, in a memorandum decision, the Arizona Court of Appeals granted review, and denied relief. (Doc. 1, Ex. D.) Petitioner's petition for review to the Arizona Supreme Court was denied without comment on June 1, 2009. ( Id., Ex. E.)
D. Federal Habeas Petition
Petitioner's habeas corpus petition, placed in the prison mailing system on May 19, 2010 ( Id. at 11), raises four grounds in support of his request for habeas relief. In Ground One, Petitioner contends that his Fifth and Fourteenth Amendment due process rights were violated because he was convicted of "luring a minor for sexual exploitation, " but the conduct in which he engaged-"the mere solicitation for oral sex"-is not conduct that violates Arizona Revised Statutes § 13-3554(A). In Ground Two, Petitioner asserts that his due process rights were violated because he was sentenced with an "under 12" enhancement "without proper notice of such enhancement." In Grounds Three and Four, Petitioner claims he received ineffective assistance of counsel ("IAC"), in violation of the Sixth and Fourteenth Amendments.
A. Standard of Review
Because Petitioner filed his petition after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) ("AEDPA").
B. Statute of Limitations
Under the AEDPA, a state prisoner must generally file a petition for writ of habeas corpus within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review [.]" 28 U.S.C. § 2244(d)(1)(A). The running of this one-year statute of limitations on habeas petitions for state convictions is tolled during any period when "a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in any state court. See 28 U.S.C. § 2244(d)(2). Thus, the statute of limitations is tolled during the pendency of a state court action for post-conviction relief. 28 U.S.C. § 2244(d)(2).
C. Exhaustion of State Remedies
A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To exhaust state remedies, a petitioner must "fairly present" the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). If a habeas claim includes new factual allegations not presented to the state court, it may be considered unexhausted if the new facts "fundamentally alter" the legal claim presented and considered in state court. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).
In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz.R.Crim.P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a prior petition or not presented in a timely manner. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(b), 32.4(a).
A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court 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." Coleman, 501 U.S. at 735 n. 1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.
Cause is defined as a "legitimate excuse for the default, " and prejudice is defined as "actual harm resulting from the alleged constitutional violation." Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991); see Murray v. Carrier, 477 U.S. 478, 488 (1986) (a showing of cause requires a petitioner to show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule"). Prejudice need not be addressed if a petitioner fails to show cause. Thomas, 945 F.2d at 1123 n.10. To bring himself within the narrow class of cases that implicate a fundamental miscarriage of justice, a petitioner "must come forward with sufficient proof of his actual innocence" Sistrunk v. Armenakis, 292 F.3d 669, 672-73 (9th Cir. 2002) (internal quotation marks and citations omitted), which can be shown when "a petitioner presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Id. at 673 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
D. Standard of Review: Merits
Petitioner's habeas claims are governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a "substantially higher threshold for habeas relief" with the "acknowledged purpose of reduc[ing] delays in the execution of state and federal criminal sentences.'" Schriro v. Landrigan, 550 U.S. 465, 475 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA's "highly deferential standard for evaluating state-court rulings'... demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) ( per curiam ) (quoting Lindh, 521 U.S. at 333 n. 7).
Under the AEDPA, a petitioner is not entitled to habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication:
(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 relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); ...