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Higgins v. Ryan

United States District Court, D. Arizona

September 15, 2014

Robert Dale Higgins, Petitioner,
Charles L. Ryan, et al., Respondents.


D. THOMAS FERRARO, Magistrate Judge.

Petitioner Robert Higgins, presently incarcerated at the Arizona State Prison-Eyman, Meadows Unit, in Florence, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Docs. 22-25), and Petitioner's Reply (Doc. 29). The parties have consented to Magistrate Judge jurisdiction. (Doc. 20.) Based on the pleadings and exhibits submitted to the Court, the Petition is denied.


Higgins was convicted in the Superior Court of Cochise County of child molestation, indecent exposure, tampering with evidence, and 16 counts of sexual exploitation of a minor. (Doc. 22, Ex. B.) On October 22, 2009, he was sentenced to prison terms totaling 227 years. ( Id. )

The convictions were based on the following facts, as summarized by the appellate court:

While using Higgins's desktop computer in October 2007, his girlfriend B. found and viewed a portion of a recently recorded video depicting Higgins and his then-four-year-old daughter, T. In the video, Higgins was naked, while T. was wearing only a t-shirt. Higgins, while masturbating, approached T. and appeared to speak to her, at which time she "went on all fours" and turned her "buttocks... towards him." Higgins then reached his hand toward her genitals and, according to B., "it looked like he had actually touched her genital area, " although B. also stated she "didn't actually see" Higgins "touch [T.'s] area" because T.'s "leg was in the way" and B. therefore could not see his hand. B. stopped the video before it ended and called Higgins, threatening to contact law enforcement. Higgins then returned to his house, and when B. asked him "if he had done it, " he responded that he wanted to "explain." B. then left, telling Higgins that she was going to report him.
After B. spoke with police officers, she agreed to make a recorded telephone call to Higgins. During that call, Higgins tacitly admitted he had touched T. inappropriately but explained he had only done it once and it had been a mistake. Pursuant to a search warrant, police officers searched Higgins's home and, although they did not find his desktop computer, they found a laptop computer. A computer forensics expert discovered on the laptop computer's hard drive ten photographs and four videos depicting child pornography, all involving unknown victims. Police officers later found Higgins at a hotel and arrested him. Officers found Higgins's desktop computer in his hotel room, but the hard drive had been removed and thrown away and Higgins had installed a replacement.

(Doc. 22, Ex. E at 2-3.)

Higgins filed an appeal, and the Arizona Court of Appeals affirmed his convictions and sentences. (Doc. 22, Exs. D, E.) Higgins did not seek review in the Arizona Supreme Court. ( Id., Ex. G.) Higgins filed a Notice of Post-conviction Relief (PCR). ( Id., Ex. H.) Higgins's appointed attorney filed an Anders brief, stating that he did not find any claims for relief to raise in a PCR petition and seeking leave for Higgins to file a pro se petition if he so chose. ( Id., Ex. J.) Petitioner filed a PCR petition, which was denied. ( Id., Exs. K, L.) Higgins sought and was granted review of the PCR denial in the Arizona Court of Appeals, but relief was denied. ( Id., Exs. M, N.) Higgins did not seek review in the Arizona Supreme Court. ( Id., Ex. O.)


Petitioner raises nine claims in his Petition. Respondent does not contest the timeliness of the Petition but contends Claims 1 and 6 are procedurally defaulted and Claim 9 is not cognizable. The Court will first exam exhaustion of Claims 1 and 6 and then address the merits of the remaining claims, including the cognizability of Claim 9.


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 properly exhaust, 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).

In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. 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, 518 U.S. at 161-62.

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.


In Claims 1 and 6, Higgins alleges trial and appellate counsel were ineffective for failing to contest the exercise of jurisdiction over the counts in the indictment based on the images found on his laptop computer. Specifically, Higgins argues that receipt of the images occurred in South Korea in 2005 and the images were never accessed or even accessible in Arizona because the laptop was broken. Respondents concede Higgins fairly presented these claims in state court (Doc. 22, Ex. K at 5-7, 16-17), but contend they were found precluded on state law grounds.

In the PCR petition, regarding trial counsel, Higgins argued that there was no jurisdiction because the images at issue were downloaded outside of Arizona and never accessed within the state. (Doc. 22, Ex. K at 6.) He went on to assert that trial counsel failed to argue that he did not possess the images within the jurisdictional boundaries of Arizona because the computer was broken and the images were only accessible with specialized software. ( Id. at 7.) Higgins argued that the central question was one of possession, without which there was no jurisdiction, ( Id. at 8.) In a later section, Higgins argued that appellate counsel failed to contest jurisdiction and conceded that Higgins possessed the images, despite the last access to the images occurring outside the jurisdictional boundary of Arizona. ( Id. at 16.)

The PCR court held that trial counsel did not fall below professional norms because "[i]t was clear that Arizona did have jurisdiction to prosecute defendant for possession of the images... and thus any supposed failure of trial counsel in contesting these issues would not have prejudiced defendant's case." (Doc. 22, Ex. L at 2.) Thus, Claim 1 was squarely addressed on the merits and is properly exhausted.

The ruling regarding IAC on appeal, Claim 6, is less clear. Some of the confusion is due to the terminology used to discuss the claim. As acknowledged by Higgins in the PCR petition, his ineffective assistance of counsel (IAC) claims related to jurisdiction hinge on the question of "possession"; thus, those two words are used interchangeably by him and the state courts to articulate the claim. Therefore, this Court looks at the PCR court's discussion of both jurisdiction and possession.

The PCR court made the following finding: "Defendant's argument that trial counsel did not argue about whether the images were in his possession is simply factually wrong; trial counsel did in fact argue the sufficiency of the evidence. So did appellant counsel during the direct appeal." (Doc. 22, Ex. L at 2.) A few pages later, the PCR court discussed the question of jurisdiction more extensively: "As the State correctly argues: Admittedly, the Court of Appeals did not use the term "jurisdiction" while disposing of this issue, yet the legal and factual analyses remains the same. Thus, the issue is indistinguishable from the claim... that his possession was not intentional.'" ( Id. at 4.) The PCR court went on to hold:

Arizona had (and continues to have) jurisdiction to prosecute defendant for the images found on the laptop computer, regardless of where they were downloaded. The Court of Appeals must have determined that Arizona had such jurisdiction; otherwise, the convictions and sentences could not have been affirmed. The issue of jurisdiction is thus precluded under Rule 32.2(a), as having been raisable on direct appeal and in fact decided on direct appeal.

( Id. ) The appellate court found no error in the PCR court's decision. ( Id., Ex. N.)

Arguably, the PCR court ruled on the merits of the claim when it stated that appellate counsel raised the issue of possession on appeal. (Doc. 22, Ex. L at 2.) In making that finding, the PCR court implicitly concluded the IAC on appeal claim was without merit. Two pages later, the PCR court again indicated that appellate counsel sufficiently raised jurisdiction, which undermines a claim of ineffectiveness. The PCR court remarked that when appellate counsel raised (and the court of appeals decided) the claim that Higgins did not intentionally possess the images that addressed the jurisdictional argument. ( Id. at 4.) Thus, this Court could conclude the PCR court addressed this claim on the merits.

Alternatively, the PCR court indicated that this issue was precluded because it was raised and decided on appeal. There are two difficulties with this Court adopting such a finding. First, the PCR court stated that the issue of jurisdiction was decided on appeal, not that the IAC claims related to jurisdiction were resolved on appeal. This is logical because it is not possible for appellate counsel to raise a claim of her own ineffectiveness on appeal. Second, to the extent the PCR court's ruling was addressing the IAC claim, it is evident that the ruling refers to Rule 32.2(a)(2), which addresses claims raised on appeal. A preclusion ruling based on Arizona Rule 32.2(a)(2) does not operate as a bar to federal review of a claim. See Poland (Patrick) v. Stewart, 169 F.3d 573, 578 (9th Cir. 1999) (noting that a precluded claim appears to be a "classic exhausted claim"); Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.1996) (recognizing the distinction between waiver and preclusion, and holding that "[p]reclusion does not provide a basis for federal courts to apply a procedural bar"). Normally, when a state court makes a preclusion finding under Rule 32.2(a)(2), a federal court reviews the claim by examining the earlier state adjudication. In this instance, however, the IAC on appeal claim was not raised or decided on direct appeal. Consequently, this Court would have to find that the PCR court erroneously determined that the issue had been resolved on appeal.

Under either interpretation the claim is not procedurally barred from review in this Court. Because Petitioner fairly presented Claim 6 in the PCR proceedings, and the state courts did not find it defaulted pursuant to an adequate bar, it is properly before this Court for review.


The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a "substantially higher threshold for habeas relief" with the "acknowledged purpose of reducing delays in the execution of state and federal criminal sentences.'" Schriro v. Landrigan, 550 U.S. 465, 473-74 (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 v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

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 last 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)); ...

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