United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on or about August 16, 2012. Respondents filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 12) on February 25, 2013. In an order issued September 24, 2013, the Court allowed Petitioner until sixty days after the date the District Court decided Petitioner's motion for emergency injunctive relief to file a reply to the answer to his petition. See Doc. 25. The decision on the motion for injunctive relief was issued October 29, 2013. See Doc. 29. Accordingly, Petitioner's reply to the answer to his petition was due December 30, 2013.
I Procedural History
An information filed June 14, 2004, charged Petitioner with one count of third-degree burglary and one count of theft. See Answer, Exh. A. The state also alleged that Petitioner had four historical felony convictions, i.e., a conviction for "criminal simulation" and three convictions for theft. The state further alleged that Petitioner had committed the charged offenses while on release for the most recent of the previous theft convictions. See id., Exhs. C & D.
On October 28, 2004, Petitioner filed a pro se motion asking the trial court for the appointment of alternate counsel because, he alleged, his relationship with his attorney was irretrievably compromised. Id., Exh. E. On November 1, 2004, the trial court discussed the motion with Petitioner and his attorney, and then denied the motion. Id., Exhs. F & G. On November 4, 2004, at the conclusion of a one-day trial, a jury found Petitioner guilty as charged. Id., Exhs. H-O.
The state court conducted a sentencing hearing on December 14, 2004. Id., Exhs. Q & R. The state court found that Petitioner had four historical prior felony convictions. The trial court declined to follow the state's recommendation that it impose an aggravated term of fifteen years imprisonment on each conviction. The state trial court instead sentenced Petitioner to concurrent, slightly aggravated terms of twelve years imprisonment on each of the counts of conviction. Id., Exh. Q at 20-21; Exh. R at 2-3.
Petitioner took a timely direct appeal of his convictions and sentences. Petitioner's appointed appellate counsel filed a brief indicating counsel could find no meritorious issues to raise on appeal. Id . Exh. S. Petitioner filed a pro se opening brief in his direct appeal raising four claims for relief. In his pro se brief Petitioner presented a Blakely claim, a claim of ineffective assistance of counsel because his counsel was not replaced after "irreconcilable conflict", a claim that he was not allowed to present mitigating evidence regarding sentencing, and a claim of prosecutorial misconduct, i.e., he asserted that the prosecution made incorrect statements about Petitioner at trial and sentencing. See Doc. 1, Exh. B. In an unpublished memorandum decision issued March 30, 2006, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Id., Exh. B.
On October 18, 2006, the Arizona Court of Appeals issued an order addressing Petitioner's substitution-of-counsel claim, which it had previously construed in his direct appeal as an ineffective assistance of counsel claim; the appellate court denied relief on the claim. Id . (Doc. 1), Exh. D, Attach. B. Petitioner sought review of this decision by the Arizona Supreme Court, which summarily denied review. See Answer, Exh. Z. The United States Supreme Court denied Petitioner's petition for a writ of certiorari on December 3, 2007. See Doc. 1, Exhs. E, F, G.
Prior to the denial of certiorari, on July 3, 2007, Petitioner initiated a state action for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id . (Doc. 1), Exh. M. In his Rule 32 action Petitioner asserted a claim corresponding to his third federal habeas claim, and two ineffective-assistance-of-counsel claims which correspond to his fourth and fifth federal habeas claims. See id., Exh. H. Petitioner also filed an amendment to his Rule 32 pleading in which he raised an ineffective assistance claim that corresponds to his sixth federal habeas claim. Id., Exh. I.
In a decision issued November 20, 2008, the state trial court denied post-conviction relief. Doc. 1, Exh. J. In a decision issued August 22, 2011, the Arizona Court of Appeals summarily denied a petition for review of this decision. Id., Exh. K & Exh. L.
On August 16, 2012, Petitioner filed the pending federal habeas petition in this Court, raising six claims for relief. Respondents allow that the petition is timely filed. Respondents also allow that Petitioner's claims for relief are exhausted in the state courts.
II Standard of review
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Carey v. Musladin , 549 U.S. 70, 75, 127 S.Ct. 649, 653 (2006); Musladin v. Lamarque , 555 F.3d 834, 838 (9th Cir. 2009). "Under AEDPA, a federal court may not grant a petition for a writ of habeas corpus unless the state court's adjudication on the merits was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Lafler v. Cooper , 132 S.Ct. 1376, 1390 (2012), quoting 28 U.S.C. § 2254(d)(1).
A state court decision is contrary to federal law if it applied a rule contradicting the governing law of United States Supreme Court opinions, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. See, e.g., Brown v. Payton , 544 U.S. 133, 141, 125 S.Ct. 1432, 1438 (2005); Yarborough v. Alvarado , 541 U.S. 652, 663, 124 S.Ct. 2140, 2149 (2004); Runningeagle v. Ryan , 686 F.3d 758, 785 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013). For example, a state court's decision is considered contrary to federal law if the state court erroneously applied the wrong standard of review or an incorrect test to a claim. See Knowles v. Mirzayance , 556 U.S. 111, 121, 129 S.Ct. 1411, 1419 (2009); Wright v. Van Patten , 552 U.S. 120, 124-25, 128 S.Ct. 743, 746-47 (2008); Runningeagle , 686 F.3d at 784-85; Norris v. Morgan , 622 F.3d 1276, 1288 (9th Cir. 2010). See also Frantz v. Hazey , 533 F.3d 724, 737 (9th Cir. 2008); Bledsoe v. Bruce , 569 F.3d 1223, 1233 (10th Cir. 2009).
A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies a governing rule but applies it to a new set of facts in a way that is objectively unreasonable, or if it extends, or fails to extend, a clearly established legal principle to a new set of facts in a way that is objectively unreasonable. See McNeal v. Adams , 623 F.3d 1283, 1287-88 (9th Cir. 2010). When considering such a claim, "a habeas court must determine what arguments or theories supported or... could have supported, the state court's decision; and then it must ask where it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. 770, 786 (2011).
The state court's determination of a habeas claim may be set aside under the unreasonable application prong if, under clearly established federal law, the state court was "unreasonable in refusing to extend [a] governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone , 530 U.S. 156, 166, 120 S.Ct. 2113, 2120 (2000). See also Cheney v. Washington , 614 F.3d 987, 994 (9th Cir. 2010). However, the state court's decision is an unreasonable application of clearly established federal law only if it can be considered objectively unreasonable. See, e.g., Renico v. Lett , 559 U.S. 766, 130 S.Ct. 1855, 1862 (2010); Runningeagle , 686 F.3d at 785. An unreasonable application of law is different from an incorrect one. See Renico , 130 S.Ct. at 1862; Cooks v. Newland , 395 F.3d 1077, 1080 (9th Cir. 2005). "That test is an objective one and does not permit a court to grant relief simply because the state court might have incorrectly applied federal law to the facts of a certain case." Adamson v. Cathel , 633 F.3d 248, 255-56 (3d Cir. 2011).
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. Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, [ ] (2004). And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance , 556 U.S. 111, 129 S.Ct. 1411, 1413-14, [ ] (2009) (internal quotation marks omitted).
Harrington , 131 S.Ct. at 786.
The phrase "clearly established Federal law" refers to "the holdings, as opposed to the dicta, " of the Supreme Court's decisions "as of the time of the relevant state-court decision." Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495 [ ] (2000). A state court's decision is "contrary to" this body of law if it applies a rule that contradicts the governing law articulated by the Supreme Court or arrives at a result different than that reached by the Supreme Court in a case with materially indistinguishable facts. Id. at 405-06, 529 U.S. 362 , 120 S.Ct. 1495, .
A decision involves an "unreasonable application" of clearly established federal law if it "identifies the correct governing legal principle... but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 529 U.S. 362 , 120 S.Ct. 1495 . The Supreme Court has emphasized that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 529 U.S. 362 , 120 S.Ct. 1495, . Accordingly, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411, 529 U.S. 362 , 120 S.Ct. 1495. Instead, the court must determine whether the state court's application of Supreme Court precedents was objectively unreasonable. Id. at 409, 529 U.S. 362 , 120 S.Ct. 1495, . Although the Supreme Court's decisions are the focus of the unreasonable-application inquiry, we may look to Ninth Circuit case law as "persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application' of Supreme Court law." Duhaime v. Ducharme , 200 F.3d 597, 600 (9th Cir. 2000).
Howard v. Clark , 608 F.3d 563, 567-68 (9th Cir. 2010).
Accordingly, if the Supreme Court has not addressed a specific issue in its holdings, the state court's adjudication of the issue cannot be an unreasonable application of clearly established federal law. See Stenson v. Lambert , 504 F.3d 873, 881 (9th Cir. 2007), citing Kane v. Garcia Espitia , 546 U.S. 9, 10, 126 S.Ct. 407, 408 (2006). Stated another way, if the issue raised by the petitioner "is an open question in the Supreme Court's jurisprudence, " the Court may not issue a writ of habeas corpus on the basis that the state court unreasonably applied clearly established federal law by rejecting the precise claim presented by the petitioner. Cook, 538 F.3d at 1016; Crater v. Galaza , 491 F.3d 1119, 1123 (9th Cir. 2007). The United States Supreme Court "has held on numerous occasions that it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles , 129 S.Ct. at 1419, citing Wright , 552 U.S. at 124-25, 128 S.Ct. at 746-47.
Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke , 545 U.S. 231, 240-41, 125 S.Ct. 2317, 2325 (2005); Miller-El v. Cockrell , 537 U.S. 322, 340, 123 S.Ct. 1029, 1041 (2003); Runningeagle , 686 F.3d at 763 n.1; Crittenden v. Ayers , 624 F.3d 943, 950 (9th Cir. 2010); Stenson , 504 F.3d at 881; Anderson v. Terhune , 467 F.3d 1208, 1212 (9th Cir. 2006). The "presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata , 455 U.S. 591, 593, 102 S.Ct. 1303, 1304-05 (1982). Additionally, the United States Supreme Court has held that, with regard to claims ...