BERNARDO P. VELASCO, Magistrate Judge.
Petitioner, Jose Acencion Leon, presently confined in the Arizona State Prison Complex, Central Unit, in Florence Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Petition). (Doc. 1.) After Respondents filed an answer to the petition (Answer) (Doc. 11) with Exhibits A through BB attached, Attorney Adam Bleier, on behalf of the Arizona Justice Project, filed a notice of appearance for Petitioner. Petitioner, through counsel, filed a supplemental memorandum in support of the Petition (Supplemental Petition) (Doc. 21) with Exhibits 1-30 attached. Respondents filed a response to the Supplemental Petition (Supplemental Response) (Doc. 24) with Exhibits CC through FF attached, and Petitioner filed a Reply (Doc. 33).
On January 31, 2013, the Court granted Petitioner's Motion to Amend the Petition. (Doc. 55.) Petitioner's Amended Petition (Doc. 59) with Exhibit 1-2 attached was filed. Respondent's filed a Supplemental Answer (Doc. 60) with Exhibit GG attached. Petitioner filed a Supplemental Reply. (Doc. 65.)
In accordance with provisions of Title 28, U.S.C. § 636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 56)
For the reasons discussed below, the Magistrate Judge denies the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
A. Trial Court Proceedings
On December 11, 2002, an indictment was returned by the grand jurors of Pima County in Arizona Superior Court, alleging Petitioner molested his girlfriend's minor daughter, ("L."), on two occasions, once in March and again in October of 2002; the indictment charged Petitioner with two counts of sexual abuse of a minor under 15, one count of molestation of a child, and one count of sexual abuse of a minor under 15 (all dangerous crimes against children under A.R.S. §13-604.01). (Supplemental Petition, Ex. 1 (Indictment).) After a jury trial, Petitioner was found guilty on all counts. (Ex. A.) Petitioner was sentenced on February 23, 2004, to concurrent mitigated sentences of 2.5 years for the sexual abuse counts, a concurrent mitigated sentence of 10 years on the molestation count, and (after a resentencing on March 20, 2006) (Ex. G, Memorandum Decision ("M.D.") 5/05/05 at ¶ 19-20; Ex. H, Minute Entry ("M.E") 3/20/06) a mitigated sentence of 13 years on the count of sexual conduct with a minor. The 13-year sentence was consecutive to the 2.5-year sentence and the 10-year sentence, for a total of 23 years. (Ex. B, Sentencing 2/23/03; Ex. G, M.D. 5/05/05.) There are no sentencing issues presented in the Petition.
L., thirteen year's old at the time of trial, testified as follows: L. lived with her mother, her older brother, her younger sister, her mother's boyfriend, Petitioner, and Petitioner's niece. (Ex. BB, RT 9/23/03, at 145-149.) Early in the morning on a day in March, 2002, before school, Petitioner went to L.'s room and called to her while she was in bed, woke her up, and she went to the living room with him and sat on the couch. ( Id. at 178-181.) Petitioner touched her breasts and her "private spots" with his hand under her clothes. ( Id. at 181-183.) L. testified that when she said "private spots" she was referring to her vagina. ( Id. at 162.) L. testified that Petitioner stopped because she had to go to school. ( Id. at 184.) Petitioner told L. "[n]ot to tell her mom". ( Id. at 183.) L. did tell her mother, but mother took no action when Petitioner denied the conduct. (Ex. DD, RT 9/24/03, at 259.)
Petitioner had a paper route, and L. and her brother, and sometimes Petitioner's niece helped deliver the papers on the weekends. (Ex. BB, RT 9/23/03, at 149-150.) One Sunday in October 2002, Petitioner had L. and her brother help him with the delivery. ( Id. at 152.) After picking up the papers that morning, Petitioner stopped his vehicle in a parking lot to fold the newspapers. ( Id. at 153-154.) L.'s brother walked to a nearby convenience store to get something to eat. ( Id. at 156-158.) After the brother left, Petitioner told L. to get into the truck, where he touched her breasts under her clothes and touched her under her pants on her "private spots." ( Id. at 160-163.) Petitioner then crawled on top of L., but got off her when her brother returned from the convenience store. ( Id. at 163-164.) They then went back to folding the papers and then delivering them. ( Id. at 164-165.) When her brother returned from the convenience store, L. did not talk to him about what had happened. ( Id. at 164.) L. did not go home and immediately tell her mother what happened. (Ex. BB, RT 9/23/03, at 170.)
A few days later, when her mom returned from work, L. told her what had happened on Sunday. ( Id. at 170-172.) After L.'s mother picked Petitioner up from work, and returned home, the three of them talked about what happened on Sunday. ( Id. at 173.) On Tuesday, L. told some people at school what had allegedly happened. ( Id. at 184.) After phoning her mother for permission, which her mother gave, L. also went to talk to a school counselor. ( Id. at 184-186.) Her mother came to the school around the same time she was talking to the counselor. ( Id. at 186.) L. was never medically examined.
L. recanted her allegations on three occasions prior to trial. L. told a Child Protective Services worker, that she had lied about what she had said. (Ex. BB, RT 9/23/03, at 187.) L. wrote a letter addressed to the judge in which she stated that "it didn't really happen, I just said that because he was mean to us and he always yelled.'" ( Id. at 188.) During a meeting with the prosecutor, defense attorney and her mother, L. stated that she had lied. ( Id. at 189.) L. stated she lied "[b]ecause they kept changing the court dates and kept me from my school work like I said it didn't happen." ( Id. at 189.)
The state appellate court affirmed Petitioner's conviction on direct appeal. (Ex. G, M.D. 5/05/05) The appellate court addressed Petitioner's arguments, rejecting Petitioner's contentions that: (1) the evidence of sexual conduct with a minor was insufficient to support the verdict; and (2) the trial court abused its discretion in denying Petitioner's requested Willits  instruction. Id.
Petitioner filed a petition for review to the Arizona Supreme Court on August 10, 2005 (Ex. I), and on January 5, 2006, that court denied review, (Ex. J).
C. First Petition for Post-Conviction Relief
Petitioner's notice of post-conviction relief was filed on March 3, 2005. (Ex. K.) Petitioner filed a petition for post-conviction relief (PCR) on May 7, 2008. (Ex. M.) Petitioner presented the following claims of ineffective assistance of counsel ("IAC") in his petition: (1) failure to communicate to and properly evaluate the State's plea offer with Mr. Leon; (2) failure to present an expert witness to undermine the testimony of the State's "cold" expert witness, Wendy Dutton, and failure to properly cross-examine her; (3) failure to call factual witnesses that were listed on the Petitioner's witness list prior to trial; (4) failure to call character witnesses; (5) failure to object to the manner in which the prosecutor led the alleged victim through her direct testimony; and (6) failure to introduce a letter which showed that the alleged victim had sexual knowledge where her trial testimony suggested that she did not. ( Id. ) Petitioner also raised two claims of new evidence: (1) the discovery of a friend and neighbor who made similar allegations against her own father immediately prior to L.P. making allegations against the Petitioner; and (2) there existed evidence that the State's expert had fabricated her credentials regarding her education. ( Id. )
The trial court reviewed the petition and granted a hearing on the allegation that trial counsel was ineffective in not explaining the proposed plea agreement. (Answer, Ex. O, Ruling, 8/05/05.) The trial court also allowed further argument on whether a hearing should be held on Petitioner's claim of newly discovered evidence regarding the allegations by the victim's friend, but ultimately limited the scope of the evidentiary hearing to the issue of whether trial counsel was ineffective in not explaining the plea agreement to Petitioner. (Ex. O, M.E. 8/05/05; Ex. P, Ruling 8/15/08.) Following an evidentiary hearing (Ex. R, R.T. 10/29/08), the court addressed the merits of each claim, and denied the PCR. (Ex. S, Ruling, 12/11/08.) Regarding the newly discovered evidence claims, the trial court found that the claim regarding Wendy Dutton was impeachment material, but that Dutton's testimony was not of sufficient critical significance at trial that the impeaching evidence probably would have changed the verdict or sentence. (Ex. S, Ruling, 12/11/08 at 2-3); see Rule 32.1(e)(3)(Newly discovered material facts exist if "[t]he newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.") As to the newly discovered evidence about the victim's friend, the trial court found that the evidence existed well before the time of trial, there was no affidavit of newly discovered evidence from defendant or his counsel, and also that the attenuation in time and lack of evidence of factual similarity made it inappropriate to grant a new trial. (Ex. S, Ruling, 12/11/08 at 4-5).
Petitioner moved for a rehearing, asserting that the trial court made two errors of fact in its ruling on Petitioner's claim of newly discovered evidence regarding the allegations by the victim's friend. (Ex. T.) The trial court addressed the factual issues, found that the evidence was newly discovered, and that the defense had exercised due diligence in discovering the evidence, but affirmed its previous ruling, finding that the newly discovered evidence was for the purposes of impeachment, that it did not substantially undermine the victim's testimony, nor was it probable that it would have changed the verdict in the case. (Ex. U, Ruling, 1/28/09.)
Petitioner filed a petition for review of the trial court's ruling alleging the court erred in denying relief on all eight of the claims raised in the PCR. (Ex. V.) The appellate court expressed satisfaction with the trial court's identification, analysis, and resolution of the PCR, and, without further elaboration, found no abuse of discretion by the trial court and denied relief on the petition. (Ex. W, M.D., 7/31/09)(citing State v. Whipple , 177 Ariz. 272 (App. 1993).
Petitioner's petition for review to the Arizona Supreme Court was denied without comment on March 3, 2010 (Ex. Y), making the trial court's ruling, as adopted by the appellate court's decision, the last reasoned decision on these claims.
D. Federal Habeas Petition
On February 18, 2011, Petitioner deposited his habeas petition for mailing in the prison mailing system. (Doc. 1, Petition.) Petitioner filed a supplemental memorandum on November 18, 2011. (Doc. 21, Supplemental Petition.) On January 30, 2013, the Court granted Petitioner's Motion to Amend his habeas petition and ordered Petitioner to file his verified amended petition. (Doc. 55.) Petitioner filed the Amended Petition on February 18, 2013. (Doc. 59, Amended Petition.)
Eight grounds for relief were raised by the Petitioner in his pro se Petition: Grounds One through Six alleged claims of ineffective assistance of trial counsel; Ground Seven alleged newly discovered evidence that the victim's friend made the same allegations against her father prior to the victim's allegations against Petitioner; and Ground Eight alleged newly discovered evidence that the State's expert witness falsified her academic credentials. (Petition, at 6-13.)
The Amended Petition modified Petitioner's newly discovered evidence claims in the following manner: Ground Seven of the Amended Petition alleges that Petitioner's Sixth Amendment right to effective assistance of counsel was violated by trial counsel's failure to investigate and discover that a neighbor the same age as the victim had made similar allegations. In addition, post-conviction counsel was ineffective in failing to properly "federalize" this claim and raise it as an IAC claim under the Sixth Amendment. (Amended Petition, at 8-9.) Ground Eight of the Amended Petition alleges that Petitioner's Sixth Amendment right to effective assistance of counsel was violated by trial counsel's failure to investigate and discover the important impeachment evidence of the State's expert witness. In addition, the Petitioner's due process rights under Brady v. Maryland , 373 U.S. 83 (1963) and the Fifth and Fourteenth Amendment were violated by the State's failure to disclose such evidence. Post-conviction counsel was ineffective in failing to properly "federalize" this claim and raise it as an IAC claim under the Sixth Amendment. (Amended Petition, at 9-10.)
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). Ordinarily, "cause" to excuse a default exists if the petitioner "can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier , 477 U.S. 478, 488 (1986). 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 was either (1) "contrary to" clearly established federal law as determined by the Supreme Court, (2) "involved an unreasonable application of such law, " or (3) "was based on an unreasonable determination of the facts in light of the record before the state court." Harrington v. Richter , ___ U.S. ___, 131 S.Ct. 770, 785 (2011) (quoting 28 U.S.C. § 2254) (internal quotation marks omitted).
Because the relevant state court decision is the last reasoned state decision regarding a claim, the Court reviews the trial court's ruling on Petitioner's PCR for all claims raised in the Amended Petition. See Barker v. Fleming , 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker , 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan , 403 F.3d 657, 664 (9th Cir. 2005). "State-court decisions are measured against [the Supreme Court's] precedents as of the time the state court renders its decision.'" Cullen v. Pinholster , 131 S.Ct. 1388, 1399 (2011) (quoting Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003)). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the "clearly established Federal law, " if any, that governs the sufficiency of the claims on habeas review. Habeas relief cannot be granted if the Supreme Court has not "broken sufficient legal ground" on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams v. Taylor , 529 U.S. 362, 381 (2000). Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be "persuasive" in determining what law is clearly established and whether a state court applied that law unreasonably. Clark v. Murphy , 331 F.3d 1062, 1069 (9th Cir.2003), overruled on other grounds by Andrade , 538 U.S. 63.
The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is "contrary to" the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams , 529 U.S. at 405-06; see Early v. Packer , 537 U.S. 3, 8 (2002) ( per curiam ). In characterizing the claims subject to analysis under the "contrary to" prong, the Court has observed that "a run-of-the-mill state-court decision applying the correct legal rule to the facts of the prisoner's case would not fit comfortably within § 2254(d)(1)'s contrary to' clause." Williams , 529 U.S. at 406; see Lambert v. Blodgett , 393 F.3d 943, 974 (9th Cir. 2004).
Under the "unreasonable application" prong of § 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular... case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams , 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent "unreasonable, " the petitioner must show that the state court decision was not merely incorrect or erroneous, but "objectively unreasonable." Id. at 409; Landrigan , 550 U.S. at 473; Visciotti , 537 U.S. at 25.
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based upon an unreasonable determination of the facts. Miller-El v. Dretke , 545 U.S. 231, 240 (2005) ( Miller-El II ). A state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ( Miller-El I ); see Taylor v. Maddox , 366 F.3d 992, 999 (9th Cir. 2004). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner ...