United States District Court, D. Arizona
BRUCE G. MacDONALD, District Judge.
Petitioner Ryan Robert Baker, confined in the Arizona State Prison Complex, Tucson, and represented by counsel, has filed a Petition For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition") (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 11) and Petitioner has filed a Reply (Doc.15). The parties have consented to Magistrate Judge jurisdiction. (Doc. 16). Based on the following discussion, the Petition for A Writ of Habeas Corpus is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Court of Appeals stated the facts as follows:
Just after 2:00 a.m. on June 26, 2007, F. and V. were walking along Stone Avenue, when a vehicle with two men inside pulled alongside them. The driver leaned over the passenger and demanded money from them. He then got out of the car and approached them, again demanding money. F. told the man they did not have any money, and he and V. began to walk away. The driver got back in the vehicle and followed F. and V. for a time before again getting out of the car and approaching them on foot. When the driver demanded money again, V. told him to leave them alone. The driver returned to the vehicle to retrieve a bat. He once again demanded money and hit F. in the head with the bat. The driver then got in the car and drove away. F. suffered a traumatic brain injury.
After receiving no investigative leads, Tucson Police Detective Haynes resorted to media publicity in an attempt to acquire additional information about the crime. Within the following ten days, Davonn B. came forward, stated that he had been the passenger in the vehicle, and identified Baker as the driver who had assaulted F.
Answer (Doc. 11), Ariz.Ct.App. Mem. Decision 5/15/2009, State v. Ryan Robert Baker, No. 2 CA-CR XXXX-XXXX, (Exh. "H") at ¶¶ 2-3. On August 2, 2007, Petitioner was charged by indictment in Pima County Superior Court with two counts of attempted armed robbery (Counts One and Four) and two counts of aggravated assault (Counts Two and Three). Answer (Doc. 11), Indictment (Exh. "A"). On May 2, 2008, Petitioner was convicted on all charges, that is, as to Counts One through Three regarding the male victim, and as to Count Four regarding the female victim. Answer (Doc. 11), Minute Entry 5/2/2008 (Exh. "B") at 3-4. The jury further found as to Counts One and Two that the offense involved the use and/or discharge and/or threatening exhibition of a deadly weapon and/or dangerous instrument, to wit, a bat; as to Count Three that the offense involved the intentional or knowing infliction of serious physical injury; and as to Count Four the offense involved the use and/or discharge and/or threatening exhibition of a deadly weapon, to wit, a bat. Id. The jury found as aggravating factors that the male victim suffered severe physical and emotional harm. Id. On June 20, 2008, Petitioner was sentenced to aggravated concurrent prison terms of 15 years as to the aggravated assault convictions, a consecutive aggravated term of 15 years for the attempted armed robbery conviction regarding the male victim, and to a consecutive presumptive term of 7.5 years for the attempted armed robbery conviction regarding the female victim, resulting in a total aggregate prison sentence of 37.5 years. Answer (Doc. 11), Aggravation/Mitigation Hr'g & Sent. of Imprisonment 6/20/2008 (Exh. "C"); Sent. Tr. 06/20/08 (Doc. 14-8) at 46-47.
A. Direct Appeal
Petitioner appealed and argued that the trial court had erred in refusing to instruct the jury on third-party culpability and in ordering consecutive sentences. Answer (Doc. 11), Notice of App. (Exh. "D"); Answer (Doc. 11) Appellant's Opening Brief (Op. Br.) (Exh. "E") at 1, 7-36. The Arizona Court of Appeals affirmed Petitioner's conviction and sentence. See Answer (Doc. 11), Exh. "H." Petitioner timely sought review in the Arizona Supreme Court. Answer (Doc. 11), Ariz.Ct.App. Order 6/16/2009 (Exh. "I") & Pet. for Review 7/20/2009 (Exh. "H"). October 27, 2009, the Arizona Supreme Court denied review. Answer (Doc. 11) Order 10/28/2009, State v. Ryan Robert Baker, No. CR-09-0187-PR (Exh. "J").
B. Post-Conviction Relief Proceeding
While his petition for review was pending, Petitioner filed a Notice of Post-Conviction Relief (PCR notice) under Arizona Rules of Criminal Procedure 32.9 on October 30, 2009. Answer (Doc. 11), Notice of PCR Relief (Exh. "L"). Petitioner, represented by counsel, timely filed his PCR petition on April 28, 2010. Answer (Doc. 11), Notice 12/8/2009 (Exh. "M"), Orders (Exh. "N") & Petition for PCR (Exh. "O"). Petitioner alleged that trial counsel had provided ineffective assistance by failing to ascertain whether a crime award program had been initiated and was known to the State at the time prosecution witness Davonn Banks testified at the criminal trial. Answer (Doc. 11), Exh. "O." The trial court found no merit to the claim and denied relief without an evidentiary hearing. Answer (Doc. 11), Ruling Re: Pet. for PCR 7/9/2010 (Exh. "R"). On July 26, 2010, Petitioner sought review in the Arizona Court of Appeals. Answer (Doc. 11), Pet. for Review to Ariz.Ct.App. (Exh. "S"). The court of appeals granted review, but denied relief. Ariz.Ct.App. Mem. Decision 10/4/2010, State v. Ryan Robert Baker, No. 2 CA-CR 2010-0250-PR (Exh. "T") (Doc. 12). Although Petitioner requested and received extensions of time to file for review in the Arizona Supreme Court, he did not file a petition for review in that forum. Ariz.Ct.App. Orders (Exh. "U") (Doc. 12). The state court of appeals mandate issued on March 23, 2011. Ariz.Ct.App. Mandate (Doc. 4-4).
C. The Instant Habeas Proceeding
Petitioner filed his federal habeas petition on February 27, 2012. Petition (Doc. 1). Petitioner asserts the following grounds for relief:
(1) Ground One: Petitioner was denied his Fifth and Fourteenth Amendment due process rights to a fair trial when the trial court failed to give a "third party culpability" jury instruction.
(2) Ground Two: Arizona's procedure for determining Petitioner's eligibility for consecutive sentences as to Counts One through Three violated Petitioner's Fifth, Sixth and Fourteenth Amendment rights to (a) due process, (b) double jeopardy, and (c) a jury determination of the facts necessary to increase Petitioner's sentence beyond the statutory maximum.
(3) Ground Three: Petitioner was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to move for a new trial based on information disclosed at sentencing that the State's key witness received a $1, 000 award for his testimony. (Doc. 1 at 7).
II. STANDARD OF REVIEW
A. In General
The federal courts shall "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. " 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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); see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, "[t]he statute's design is to further the principles of comity, finality, and federalism.'" Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential "for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt." Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must "presume the correctness of state courts' factual findings unless applicants rebut this presumption with clear and convincing evidence.'" Schriro v. Landrigen, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). "AEDPA requires a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error... beyond any possibility for fairminded disagreement.'" Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original).
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This "provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives the State "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine of comity which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).
Section 2254(c) provides that claims "shall not be deemed... exhausted" so long as the applicant "has the right under the law of the State to raise, by any available procedure the question presented." 28 U.S.C. § 2254(c). "[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court "to the presence of a federal claim" in his petition, simply labeling a claim "federal" or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been "fairly presented" because his brief in the state appeals court did not indicate that "he was complaining about a violation of federal law" and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to "fairly present" one's claims, the prisoner must do so "in each appropriate state court." Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. "Generally, a ...