United States District Court, D. Arizona
LESLIE A. BOWMAN, District Judge.
Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on September 9, 2013, by Reynaldo Jesus Ledesma, an inmate confined in the Arizona State Prison Complex in Kingman, Arizona. (Doc. 1)
Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c). (Doc. 14) The petition will be denied on the merits.
Summary of the Case
Ledesma was found guilty after a jury trial of "first-degree burglary, armed robbery, trafficking in stolen property, and four counts of aggravated assault with a deadly weapon or dangerous instrument." (Doc. 17-1, pp. 2-3) The trial court sentenced Ledesma to aggregate terms of imprisonment totaling eighteen years. (Doc. 17-1, p. 3)
On direct appeal, Ledesma argued (1) the trial court "erroneously instructed the jury that the state had no burden to prove the firearm in his case was not permanently inoperable, " and (2) "there was insufficient evidence to support his armed-robbery conviction." (Doc. 17-1, p. 3) The Arizona Court of Appeals affirmed his convictions and sentences on June 17, 2011. (Doc. 17-1, pp. 2-10) The Arizona Supreme Court denied review on February 23, 2012. (Doc. 18-1, p. 65)
Previously, on June 28, 2011, Ledesma filed notice of post-conviction relief. (Doc. 18-1, p. 67) He argued in his petition that trial counsel was ineffective for (1) failing to move to suppress identifications based on the pawnshop video, (2) failing to suppress identifications at trial, (3) mishandling hearsay regarding George Hickman, (4) failing to question the allegation of armed robbery from Paul Romero, (5) mishandling prejudicial comments made by Paul Romero, and (6) failing to move to sever the burglary counts from the pawnshop counts. (Doc. 18-2, pp. 6-7) He further argued appellate counsel was ineffective for failing to question the allegation of armed robbery from Paul Romero. Id.
The trial court denied the petition on December 3, 2012. (Doc. 18-2, pp. 43-52) The Arizona Court of Appeals granted review but denied relief on April 1, 2013. (Doc. 18-3, p. 21) The Arizona Supreme Court denied review on August 8, 2013. (Doc. 18-3, p. 25)
On September 9, 2013, Ledesma filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) the jury instructions failed to explain that the state had the burden to prove the firearm in his case was not permanently inoperable, (2) the evidence was insufficient to prove armed robbery because the defendant had completed the theft by the time the gun was brandished, (3) trial counsel was ineffective for failing to object to hearsay testimony from Tyna Ann Hickman, (4) trial counsel and appellate counsel were ineffective for failing to challenge the allegation that Paul Romero was robbed because no property was taken from him, (5) trial counsel was ineffective for failing to address inflammatory comments made by Paul Romero, (6) trial counsel was ineffective for failing to move to suppress identifications based on the viewing of the pawnshop video, (7) trial counsel was ineffective for failing to suppress identifications at trial, and (8) trial counsel was ineffective for failing to move to sever the burglary counts from the pawnshop counts. (Doc. 1)
In their answer, the respondents argue Claims (1) and (2) are procedurally defaulted, but the remaining claims should be denied on the merits. (Doc. 17) Ledesma filed a reply arguing again the merits of his claims. (Doc. 23)
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim -
(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 petitioner must shoulder an additional burden if the state court considered the issues and made findings of fact.
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C.A. § 2254 (e)(1).
A decision is "contrary to" Supreme Court precedent if the "state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from Supreme Court precedent." Vlasak v. Superior Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003). A decision is an "unreasonable application" if "the state court identified the correct legal principles, but applied those principles to the facts of [the] case in a way that was not only incorrect or clearly erroneous, but objectively unreasonable." Id. If the state court denied on the merits but did not explain its reasoning, this court must independently review the record to determine whether the state court clearly erred in its application of Supreme Court law. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002), cert. denied, 539 U.S. 916 (2003). If the highest state court fails to explain its decision, this court looks to the last reasoned state court decision. See Brown v. Palmateer, 379 F.3d 1089, 1092 (9th Cir. 2004).
Federal habeas review is limited to those issues that have been fully presented to the state court. This so-called "exhaustion rule" reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State....
28 U.S.C. § 2254(b)(1)(A). This rule permits the states "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal punctuation removed).
To be properly exhausted, the federal claim must be "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971). In other words, the state courts must be apprised of the issue and given the first opportunity to rule on the merits. Id. at 275-76. Accordingly, the petitioner must "present the state courts with the same claim he urges upon the federal courts." Id. "The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis." Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).
In addition, the petitioner must explicitly alert the state court that he is raising a federal constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Casey v. Moore, 386 F.3d 896, 910-11 (9th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). The petitioner must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is "self-evident, " Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S. 1087 (2000), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, he must present his claims to the state appellate court for review. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), cert. denied, 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been exhausted, the petition may not be granted and ordinarily should be dismissed. See Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny on the merits rather than dismiss for failure to exhaust. 28 U.S.C. § 2254(b)(2).
A claim is "procedurally defaulted" if the state court declined to address the issue on the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Procedural default also occurs if the claim was not presented to the state court and it is clear the state would now refuse to address the merits of the claim for procedural reasons. Id.
Procedural default may be excused if the petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). A fundamental miscarriage of justice results "where a constitutional violation has probably resulted in the ...