United States District Court, D. Arizona
BERNARDO P. VELASCO, Magistrate Judge.
On October 9, 2013, Hubert Washington Jr., ("Petitioner"), an inmate confined in the Central Arizona Correctional Facility in Florence, filed an unsigned pro se Petition for Writ of Habeas Corpus by a person in state custody, pursuant to title 28, U.S.C. § 2254. (Doc. 1.) In an Order dated December 6, 2013, the Court required Petitioner to complete and sign a Certificate certifying that Petitioner's signature on the Certificate shall serve as an original signature on his § 2254 Petition. On December 16, 2013, Petitioner returned the completed and signed Certificate. Before this Court are the Petition, Respondents' Answer with accompanying exhibits (Doc. 12), and Petitioner's Reply with accompanying exhibits (Doc. 17).
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. (Docs. 15 & 16.)
For the reasons discussed below, the Magistrate dismisses the second claim of Ground One, and Grounds Two through Three.
I. Factual and Procedural Background
A. Trial Court Proceedings
After a four-day jury trial, Petitioner, Hubert Washington Jr. was convicted in Pima County Superior Court, case # CR-20080469, of two counts of sexual assault. (Resp. Ex. A at 2.) On March 16, 2009, he was sentenced to consecutive prison terms totaling twelve years and three months. (Resp. Ex. B at 2-3.)
B. Direct Appeal
Petitioner, through counsel, timely filed an appeal raising three issues of trial court error: (1) the trial court failed to strike the panel for cause; (2) the trial court precluded relevant evidence in violation of Petitioner's constitutional rights; and (3) the trial court's instructions were in error. (Resp. Ex. G.) On February 5, 2010, the Arizona Court of Appeals issued a memorandum decision affirming the convictions and sentences. (Resp. Ex. J.) On September 22, 2010, the Arizona Supreme Court denied a petition for review of the appellate court's decision. (Resp. Ex. M.)
C. Petition for Post-Conviction Relief
On March 23, 2009, Petitioner filed a first notice of post-conviction relief. (Resp.
Ex. D.) The trial court appointed counsel, but stayed the Rule 32 Petition pending the appeal, directing Petitioner to file a notice upon stay or completion of the appeal. (Resp. Ex. E.) On November 24, 2010, Petitioner filed a second notice of post-conviction relief. (Resp. Ex. N.) On March 15, 2011, Petitioner, through counsel, filed a petition for post-conviction relief (PCR) asserting that he was deprived of his state and federal constitutional rights to the effective assistance of counsel because trial counsel failed to object to the jury instruction defining sexual assault incorrectly by eliminating the mens rea as to the lack of consent, and appellate counsel failed to raise this issue as fundamental error. (Resp. Ex. Q.) Petitioner also argued that trial counsel was ineffective for failing to object to improper vouching by the prosecutor during closing arguments. Id. On June 15, 2011, the trial court summarily denied the petition. (Resp. Ex. U.)
Petitioner filed a pro se motion for rehearing in the trial court. (Resp. Ex. V.) The court denied the motion for rehearing, finding that Petitioner was not entitled to hybrid representation and was therefore "not granted leave to file the motion." (Resp. Ex. W.)
Petitioner, through counsel, filed a petition for review from the trial court's denial of PCR relief in the court of appeals. (Resp. Ex. X.) Thereafter, the Petitioner filed a motion to permit the filing of supplemental authority in support of his argument that the jury instruction given by the trial court was fundamental error. (Resp. Ex. Y.) The appellate court granted the motion to supplement. (Resp. Ex. Z.) On November 18, 2011, in a memorandum decision, the court of appeals granted review of Petitioner's petition for review of the trial court's denial of his PCR, but denied relief. (Resp. Ex. CC.)
Petitioner filed a petition for further review of this decision with the Arizona Supreme Court. Resp. (Ex. FF.) The Arizona Supreme Court denied the petition for further review on May 30, 2012. The mandate was issued by the appellate court on October 15, 2012. (Pet. Ex. M.)
D. Federal Habeas Petition
Washington filed this Petition for writ of habeas corpus in this Court on October 9, 2013. (Doc. 1.) Petitioner raises three grounds for relief. In Ground One, Petitioner alleges that he was denied effective assistance of counsel, in violation of the Sixth Amendment, because his attorney failed to object to the prosecutor's alleged violations of Petitioner's Fifth and Fourteenth Amendment due process rights. In Ground Two, Petitioner alleges that his Fifth and Fourteenth Amendment due process rights were violated by a jury instruction that misstated the law about sexual assault. In Ground Three, Petitioner alleges that his Fifth and Fourteenth ...