FRANK R. ZAPATA, District Judge.
Melinda Ann Elem ("Petitioner"), presently an inmate at the Arizona State Prison Complex in Goodyear, Arizona, has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition") pursuant to 28 U.S.C. § 2254. (Doc. 4). The matter is now fully briefed. For the following reasons, the Court will dismiss in part and deny in part Petitioner's Amended Petition.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner sought to hire a person to kill the unborn child of her husband's former girlfriend, Ms. Margaret Cisco, who was uncertain whether the father of her baby was Petitioner's husband or some other man. (Answer, (Docs. 12, 13), Exh. H, pp. 2-3). The person Petitioner attempted to hire was an undercover officer whom she agreed to give "a quarter of [an] ounce of drugs and a bus ticket in exchange for the killing." (Answer, Exh. H, p. 2). On April 22, 2004, a jury found Petitioner guilty as charged of one count conspiracy to commit first-degree murder and aggravated assault upon Margaret Cisco and to commit manslaughter of Margaret Cisco's unborn child, a class 1 felony (Count 1), and one count transfer of a narcotic drug (cocaine), a class 2 felony (Count 2). (Answer, Exh. E, pp. 60-62; Answer, Exh. H, p.3). Petitioner was sentenced to concurrent terms of life imprisonment with no possibility of release for 25 years of imprisonment on Count 1 and 3 years of imprisonment on Count 2. (Answer, Exh. F, pp. 83-84).
B. Direct Review
Petitioner appealed her convictions to the Arizona Court of Appeals. (Answer, Exhs. G, H). On August 29, 2005, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Answer, Exh. H, p. 2). Petitioner filed a Petition for Review with the Arizona Supreme Court which was denied on May 23, 2006. (Answer, Exh. I, p. 20; Answer Exh. J, p.50).
C. Collateral Review
On June 20, 2006, Petitioner filed a Notice of Post-Conviction Relief. (Answer, Exh. K, p. 52).Petitioner filed her Petition for Post-Conviction Relief ("PCR Petition") on March 7, 2007. (Answer, Exh. L). The trial court denied Petitioner's PCR Petition on June 11, 2007. (Answer, Exh. M). Petitioner then filed a petition for review with the Arizona Court of Appeals and the appellate court granted review but denied relief. (Answer, Exhs. N, O). On October 29, 2008, the Arizona Supreme Court summarily denied the petition for further review. (Answer, Exh. Q). The mandate issued on December 16, 2008.
D. Federal Habeas Petition
In accordance with the prison "mailbox rule, " Petitioner's federal habeas petition is deemed filed on November 2, 2009, when Petitioner delivered it to prison authorities for mailing to the court. Houston v. Lack, 487 U.S. 266, 276 (1988). After screening the Petition, the Court dismissed it without prejudice with leave to refile. (Doc. 3). Thereafter, Petitioner filed an Amended Petition raising four grounds for relief, and this Court ordered Respondents to answer it. (Docs. 4, 5).
In their Answer, Respondents argue the Habeas Petition is untimely, Grounds One and Three are procedurally defaulted, and all four claims fail on the merits. (Doc. 12). In Reply, Petitioner argues that her Petition is timely filed. (Doc. 17). Although Petitioner withdraws claim 3 ( Id. at p. 2), she contends that her other claims are properly before the Court and she is entitled to relief. ( Id. at pp. 3-6, 16-36).
A. Statute of Limitations
Petitioner commenced this action on November 2, 2009. The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations for state prisoners filing federal habeas petitions. 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run from the latest of: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States was removed, if the applicant was prevented from filing by such State action; (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
Additionally, the AEDPA limitations period is statutorily tolled when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending...." 28 U.S.C. § 2244(d)(2). Moreover, the AEDPA limitations period may also be subject to equitable tolling. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 n. 2 (9th Cir. 2009).
Petitioner's case became "final" on direct review on August 23, 2006, when the time for filing a petition for writ of certiorari to the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1158-69 (9th Cir. 1999). Before her conviction became final on direct review, Petitioner filed her Notice of Post-Conviction Relief on June 20, 2006. Therefore, when the statute of limitations began to run pursuant to § 2244(d)(1)(A), it was automatically tolled by Plaintiff's PCR action. See 28 U.S.C. § 2254(d)(2); Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir.2004) (filing of a notice of post-conviction relief begins statutory tolling).
During Petitioner's PCR proceeding, the trial court denied Petitioner's PCR Petition, the Arizona Court of Appeals granted review but denied relief, and on October 29, 2008, the Arizona Supreme Court entered its summary denial of Petitioner's Petition for Review. (Answer, Exhs. M, O, Q; see also Answer, Exh. P (appellate court order granting in part and denying in part Petitioner's motion for reconsideration)). On December 16, 2008, the Arizona Court of Appeals issued the mandate. See Ariz.R.Crim.P. 31.23(a)(3) (the clerk of the Court of Appeals shall issue the mandate 15 days after receipt of an order of the Supreme Court denying the petition for review).
Respondents contend that the statutory tolling period ended on October 29, 2008 when the Arizona Supreme Court denied review of the Arizona Court of Appeals' decision in the PCR proceeding. (Answer, p. 15). According to Respondents, Petitioner then had until October 29, 2009 to seek federal habeas relief. ( Id ). Petitioner counters that her federal petition is timely filed because the statutory tolling period did not end until the Arizona Court of Appeals issued the mandate on December 16, 2008.
Until an application for state post-conviction relief has achieved final resolution through the state's post-conviction procedure it remains pending. Carey v. Saffold, 536 U.S. 214, 220 (2002). State law determines the conclusion of collateral review and thus, state law also determines the conclusion of statutory tolling under the AEDPA. See Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir.2007). "In Arizona, when the court of appeals grants review of a petition, but denies the petition, direct review is not final until the mandate has issued." Ramon v. Ryan, 2010 WL 3564819, *6 (D. Ariz. July 23, 2010) ( citing Ariz.R.Crim.P. 31.23(a)). See also Celaya v. Stewart, 691 F.Supp.2d 1046, 1055, 1055, 1074-1075, (D.Ariz. 2010) (adopting magistrate judge's conclusion that PCR petition "was pending, as the Supreme Court defined that term in Carey, until it reached final resolution upon issuance of the court of appeals mandate....", and holding "under Arizona law, the Petitioner is entitled to statutory tolling because an Arizona appellate court decision is not final until the mandate issues")(collecting cases holding that conviction becomes final on date either the appellate court or state supreme court issues the mandate), aff'd 497 Fed.Appx. 744, 2012 WL 5505735, *1 (9th Cir. 2012); see also Celaya, 497 Fed.Appx. 744, 745, 2012 WL 5505736 at *1 ("Under Arizona law, [petitioner's] post-conviction review...petition was pending' until the Arizona Court of Appeals issued the mandate concluding its review of that petition....")).
Arizona Rules of Criminal Procedure provide, in pertinent part, that in cases where the petitioner seeks review of the appellate court's decision, the appellate court "shall not issue a mandate until 5 days after the receipt" of an order denying review. Ariz.R.Crim.P. 31.21(a)(3). See also A.R.S. § 12-120.24 ("upon receipt from the clerk of the supreme court of notification that the request for review has been denied, the clerk of the division [of the appellate court] shall, if the matter has been decided by formal opinion, issue the mandate of the court of appeals, if no written formal opinion has been rendered then by certified copy of the order of the court."). Further, in a case where the appellate court had issued a memorandum opinion, the Arizona Supreme Court has explained that "[i]f this court denies the petition and cross petition for review, the Court of Appeals issues the mandate to the trial court....This procedure comports with the notion that the court which makes the binding decision should issue the mandate." State v. Ikirt, 160 Ariz. 113, 770 P.2d 1159 (1989) ( citing Ariz.R.Crim.P. 31.19(h)); see also Borrow v. El Dorado Lodge, Inc., 75 Ariz. 218, 254 P.2d 1027, 220, 1028-29 (1953) (an appellate court's decision becomes effective "under our practice, [on] the date of issuance of...the mandate") (citation omitted).
Respondents' reliance on Ninth Circuit cases construing Washington and Guam law is inapposite given that the Ninth Circuit did not construe Arizona law in those cases. ( See Answer, p. 15 ( citing White v. Klitzkie, 281 F.3d 920, 923 n.4 (9th Cir. 2002); Wixom v. Washington, 264 F.3d 894, 897-98 & n.4 (9th Cir. 2001)). Additionally, Respondents' reliance on the Ninth Circuit's decision in Hemmerle is also misplaced given that Hemmerle did not involve a situation where, like the instant case, the appellate court granted review but denied relief in the post-conviction proceeding. Instead, Hemmerle, in pertinent part, addressed whether a letter issued from the clerk of the court of appeals facilitating the performance of the ministerial function of returning the record to the trial court after the Arizona Supreme Court's denial of review factored into the tolling period under section 2244(d)(2). Hemmerle, 495 F.3d at 1077. In deciding that the post-conviction proceeding was not pending for purposes of AEDPA's tolling provision when the letter issued, the Hemmerle court pointed out that the letter was not a mandate, nor was it the equivalent to the issuance of a mandate. Id. On the instant facts, the AEDPA statute of limitations was tolled until December 16, 2008 when the mandate issued in the post-conviction relief proceedings. See Celaya, 691 F.Supp.2d at 1055, 1074-1075; Ramon, 2010 WL 3564819, at *6. Petitioner had one year from that date to file her federal habeas petition. Petitioner's federal habeas action commenced on November 2, 2009 is timely filed under the AEDPA.
B. Petitioner's Grounds for Relief
1. Standard of Review
Under the AEDPA, the Court may grant a writ of habeas corpus only if the state court proceeding:
(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). Section 2254(d)(1) applies to challenges to purely legal questions resolved by the state court and section 2254(d)(2) applies to purely factual questions resolved by the state court. Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004). Therefore, the question whether a state court erred in applying the law is a different question from whether it erred in determining the facts. Rice v. Collins, 546 U.S. 333 (2006).
Section 2254(d)(1) consists of two alternative tests, i.e., the "contrary to" test and the "unreasonable application" test. See Cordova v. Baca, 346 F.3d 924, 929 (9th Cir. 2003). Under the first test, "[a] state-court decision is contrary to [the Supreme Court's] clearly established precedents if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141(2005). "Whether a state court's interpretation of federal law is contrary to Supreme Court authority...is a question of federal law as to which [the federal courts]...owe no deference to the state courts." Cordova, 346 F.3d at 929.
Under the second test, "[a] state-court decision involves an unreasonable application of [the Supreme Court's] clearly established precedents if the state court applies [the Court's] precedents to the facts in an objectively unreasonable manner." Brown, 544 U.S. at 141. When evaluating whether the state decision amounts to an unreasonable application of federal law, "[f]ederal courts owe substantial deference to state court interpretations of federal law...." Cordova, 346 F.3d at 929.
Further, a federal habeas court can only look to the record before the state court in reviewing a state court decision under section 2254(d)(1). Cullen v. Pinholster, ___ U.S. at ___, 131 S.Ct. 1388, 1400 (2011) ("If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of §2254(d)(1) on the record that was before that state court.")(footnote omitted); Holland v. Jackson, 542 U.S. 649, 652 (2004)("[W]e have made clear that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it.")(citations omitted).
Under section 2254(d)(2), which involves purely factual questions resolved by the state court, "the question on review is whether an appellate panel, applying the normal standards of appellate review, could reasonably conclude that the finding is supported by the record." Lambert, 393 F.3d at 978; see also Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004)("a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable."). In examining the record under section 2254(d)(2), the federal court "must be particularly deferential to our state court colleagues...[M]ere doubt as to the adequacy of the state court's findings of fact is insufficient; we must be satisfied that any appellate court to whom the defect [in the state court's fact-finding process] is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.'" Lambert, 393 F.3d at 972 ( quoting Taylor, 366 F.3d at 1000)(emphasis in original).
Once the federal court is satisfied that the state court's fact-finding process was reasonable, or where the petitioner does not challenge such findings, "the state court's findings are dressed in a presumption of correctness, which then helps steel them against any challenge based on extrinsic evidence, i.e., evidence presented for the first time in federal court." Taylor, 366 F.3d at 1000: see also 28 U.S.C. §2254(c). Factual and credibility determinations by either state trial or appellate courts are imbued with a presumption of correctness. 28 U.S.C. §2254(e)(1); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002); Bragg v. Galaza, 242 F.3d 1082, 1078 (9th Cir. 2001), amended 253 F.3d 1150 (9th Cir. 2001).
Both section 2254(d)(1) and (d)(2) may apply where the petitioner raises issues of mixed questions of law and fact. Such questions "receive similarly mixed review; the state court's ultimate conclusion is reviewed under section 2254(d)(1), but its underlying factual findings supporting that conclusion are clothed with all of the deferential protection ordinarily afforded factual findings under §§ 2254(d)(2) and (e)(1)." Lambert, 393 F.3d at 978.
2. Ground One
Petitioner asserts that the trial court violated her Fourteenth Amendment right to due process when it failed to instruct jurors regarding: "specific intent"; that a dual state of mind is required for manslaughter of an unborn child; mere acquiescence is not enough to establish conspiracy; and that an overt act is required for conspiracy to commit manslaughter of an unborn child. Respondents contend that Petitioner's claim is procedurally defaulted because she did not fairly present a federal issue to the state court but, instead, only focused on state law. (Answer, p. 20).
To exhaust a federal claim, the petitioner must have "fairly present[ed] his claim in each appropriate state court...thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotations omitted). A petitioner fairly presents a claim to the state court by describing the factual or legal bases for that claim and by alerting the state court "to the fact that the...[petitioner is] asserting claims under the United States Constitution." Duncan v. Henry, 513 U.S. 364, 365-366 (1995). "In order to alert the state court, a petitioner must make reference to provisions of the federal Constitution or must cite either federal or state case law that engages in a federal constitutional analysis." Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005); see also Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001) (to exhaust state remedies, "the petitioner must have either referenced specific provisions of the federal constitution or statutes or federal case law.").
On direct appeal, Petitioner identified the instances where she claimed the trial court's errors in instructing the jury resulted in permitting the jury to convict her absent proof of an element of the charged offense. As to each challenge, Petitioner cited state cases to support her theory regarding the elements necessary for conviction under Arizona law. Petitioner concluded her first challenge to the jury instructions with the argument that the failure to establish the element at issue resulted in failure to prove her guilt beyond a reasonable doubt, which constituted "a violation of due process of law. 5th and 14th Amendments to the U.S. Constitution; see In Re Winship, 397 U.S. 358 (1970)." (Answer, Exh. G, pp. 21-22). Thereafter, she concluded other sections of her brief challenging other jury instructions by including citation to the 5th and 14th Amendments and In re Winship. ( See id. at pp. 23-24 (arguing that the trial court's error in instructing the jury "resulted in a verdict of guilt unsupported by a finding that the mens rea elements of the offense were proven beyond a reasonable doubt. 5th, 6th, 14th Ams. U.S. Const.; In re Winship, supra . "); id. at p.25 (arguing failure to instruct about element of overt act "is fundamental error....The conviction is unconstitutional. 5th, 6th, 14th Ams. U.S. Const, ; In re Winship, supra . ")).
"It is well established that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime with which [the defendant] is charged.'" Conde v. Henry, 198 F.3d. 734, 740 (9th Cir. 1999) ( quoting In re Winship, 397 U.S. at 364). Therefore, when "a trial court fails to properly instruct the jury regarding an element of the charged crime, ' the court commits a constitutional error that deprives the defendant of due process.'" Id. ( quoting Hennessy v. Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991)). "This is not an instance where the...petitioner failed to apprise the state court of [her] claim that the...ruling of which [s]he complained was not only a violation of state law, but denied [her] the due process of law guaranteed by the Fourteenth Amendment.'" Dye v. Hofbauer, 546 U.S. 1, 4 (2005) ( quoting Duncan, 513 U.S. at 366). Nor is this a case where the state appellate court had to look beyond the brief "to be aware of the federal claim." Id. ( quoting Baldwin, 541 U.S. at 32). Instead, Petitioner's state-court brief was clear that her claims regarding the jury instructions were "based, at least in part, on a federal right." Id. Petitioner has fairly exhausted these claims.
b. Merits: Introduction
Because the Arizona Supreme Court summarily denied review of Petitioner's petition for review of the appellate court's opinion on direct review, the appellate court's opinion is the last reasoned state-court decision on Petitioner's jury instruction challenges. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). The Arizona appellate court's decision rejected Petitioner's challenges regarding jury instructions under state law, but never specifically acknowledged her federal due process argument. Where, the state court rejects "a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits" for AEDPA purposes. Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1096 (2013); Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784-785 (2011). Although the petitioner may overcome this presumption in some circumstances, see Johnson, ___ U.S. ___, 133 S.Ct. at 1098-99; Harrington, ___ U.S. ___, 131 S.Ct. at 785, Petitioner has not done so here. The conclusion that the presumption has not been rebutted in this case is supported by the fact that the appellate court's determination that the trial court's instructions did not violate state law would necessarily lead to the conclusion that no federal due process violation occurred.
With regard to jury instructions, Petitioner challenges the trial court's: (1) refusal to give her proffered instruction on specific intent; (2) failure to sua sponte instruct on mere acquiescence; (3) failure to sua sponte instruct the jury that two states of mind are required for manslaughter of an unborn child; and (4) failure to sua sponte instruct that jury that conspiracy to commit manslaughter of an unborn child required proof of an overt act. (Amended Petition, pp. 6, 12-15). According to Petitioner, the trial court's failure to give the instructions resulted in omitting elements of the offense charged from the jury instructions which, in turn, permitted the jury to reach a guilty verdict on elements not found beyond a reasonable doubt in violation of due process. (Reply, p. 18).
The Supreme Court has made clear that, "[i]n a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement." Middleton v. McNeil, 541 U.S. 433, 437 ( citing Sandstrom v. Montana, 442 U.S. 510, 520-521 (1979)). Therefore, "[i]t is a violation of due process for a jury instruction to omit an element of the crime." Evanchyk v. Stewart, 340 F.3d 933, 940 (9th Cir. 2003) ( citing United States v. Gaudin, 515 U.S. 506, 509-10 (1995); Osborne v. Ohio, 495 U.S. 103, 122-24 & n. 17 (1990); Sandstrom, 442 U.S. at 524; In re Winship, 397 U.S. at 364; Ho v. Carey, 332 F.3d 587, 595 (9th Cir.2003); United States v. Mendoza, 11 F.3d 126, 128 (9th Cir.1993)). However, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton, 541 U.S. at 437. The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) ( quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). In making this determination, the court must be mindful that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" Boyde v. California, 494 U.S. 370, 378 (1990) ( quoting Cupp, 414 U.S. at 146-147).
Likewise, the state trial court's refusal to give an instruction does not alone raise a cognizable ground in federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). Instead, the error must so infect the trial that the petitioner was deprived of her right to a fair trial guaranteed by the due process clause of the Fourteenth amendment. Id. See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Moreover, when the petitioner's claim is based on the omission of an instruction, she bears an "especially heavy..." burden, because an omission is less likely to be prejudicial than a misstatement of the law. Henderson, 431 U.S. at 155. "The significance of the omission of such an ...