United States District Court, D. Arizona
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH, Magistrate Judge.
Petitioner Nathaniel Keon Curtis filed a pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for sale of a narcotic drug. (Doc. 1). Petitioner raises four grounds for relief based on trial counsel's alleged ineffectiveness: (1) trial counsel's disqualification of a witness "for personal reasons instead of for facts in evidence;" (2) trial counsel's failure to object to Petitioner's identification card being admitted into evidence; (3) trial counsel's failure to interview potential witnesses and failure to prove Petitioner was misidentified; and (4) trial counsel's failure to keep Petitioner informed of discoveries, strategies, and tactics. Petitioner also raises one claim of newly found evidence, alleging he has discovered additional witnesses that would have been available for trial had Petitioner's trial counsel conducted a proper investigation. Id.
The government filed its response contending Grounds Two, Three, and Four are unexhausted and procedurally defaulted, and that Petitioner has failed to meet his burden to establish an ineffective assistance of counsel claim for Ground One. (Doc. 10). The government further contends that Ground Five is not properly before the Court because it does not present a federal question. Id.
As to Ground One of the Petition, the Magistrate Judge finds that Petitioner has failed to establish a violation of Strickland v. Washington, 466 U.S. 668 (1984), and that the state courts did not err in their resolution of Petitioner's Strickland claim. As to Grounds Two, Three, and Four, the Magistrate Judge finds these claims are procedurally defaulted and barred from this Court's review, and that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice. As to Ground Five, the Magistrate Judge finds Petitioner fails to present a federal question for this Court's review. Accordingly, the Magistrate Judge recommends that the District Court, after its independent review, deny the petition and dismiss this matter with prejudice.
I. Factual and Procedural Background
A. Trial, Sentencing, and Appeal
A Pima County Superior Court jury found Petitioner guilty of sale of a narcotic drug for selling 750 milligrams or more of cocaine base to an undercover officer. (Doc. 10 Ex. A at 2). The officer went to a house on East 4th Street in Tucson, Arizona on November 20, 2006 and told David Williams that he wanted to purchase drugs. (Doc. 11 Ex. P at 29.) Mr. Williams told the officer he did not have any drugs; however, he offered to help the officer sell a video game console the officer had with him. Id. Mr. Williams called around but was unable to find a buyer for the video game console. Id. at 30. The officer then asked Mr. Williams for Nate's phone number, and the officer called Nate (Petitioner). Id. at 30-41. The officer testified that he recognized Nate's voice as Petitioner's because the two had previously met at the 4th Street house on November 14, 2006. Id. at 30, 41. The officer asked Petitioner to come to the house and bring him a 40 shot ($40 worth of crack cocaine), and Petitioner complied. Id. at 41-42. The officer testified he went back to the same house on November 21, 2006, and November 22, 2006, and saw Petitioner both times. Id. at 59-60.
At trial, Petitioner presented witnesses who testified that he was in Silver City, New Mexico on November 21, 2006. (Doc. 10 Ex. A at 13-14). Petitioner's defenses were alibi and mistaken identity, and trial counsel's strategy was to persuade the jury that because Petitioner was in New Mexico on November 21, 2006, Petitioner could not have been the person that sold the officer drugs on November 20, because the officer testified that he saw the same person on November 20, 21, and 22.
The trial court sentenced Petitioner to a presumptive term of 15.75 years. (Doc. 10 Ex. A at 2).
Petitioner sought review in the Arizona Court of Appeals and argued that the trial court had erred by 1) admitting a redacted audio recording of conversations between Petitioner and the undercover officer; 2) permitting a witness testifying telephonically to identify Petitioner by a photograph transmitted to him telephonically (via cell phone "picture messaging"); and 3) admitting into evidence Petitioner's driver's license, which was found at the scene of the crime. (Doc. 10 Ex. C). On October 30, 2008, the Court of Appeals affirmed Petitioner's conviction and sentence. (Doc. 10. Ex. A). Petitioner sought review from the Arizona Supreme Court, but the court denied review on April 7, 2009. (Doc. 10 Ex. E). Petitioner did not seek review of this decision by the United States Supreme Court.
B. Petition for Post-Conviction Relief
On September 8, 2008, Petitioner initiated proceedings in Pima County Superior Court for Rule 32 post-conviction relief. (Doc. 10 Ex. F). Petitioner alleged newly discovered evidence, and also alleged his trial attorney was ineffective for failing to call David Williams as a witness. Id. The trial court appointed counsel to represent Petitioner, but counsel stated he could find no colorable issues to raise in a Rule 32 petition. (Doc. 10 Ex. H). Petitioner then filed a pro se petition for post-conviction relief, arguing one claim of newly discovered material facts that called his conviction into doubt- that Hiycue Warrior could have been called as a witness for the mistaken identity defense. (Doc. 10 Ex. I). Petitioner also alleged four claims of ineffective assistance of counsel: (1) failure to call David Williams, a witness Petitioner believed would have offered testimony favorable to the defense; (2) failure to effectively present the defenses of mistaken identity and alibi; (3) failure to request a continuance so that an out-of-state witness could testify in person rather than telephonically; and (4) failure to verify who an undercover officer was speaking with in an audio recording before that recording was admitted at trial. Id. Following an evidentiary hearing, the court denied post-conviction relief on March 23, 2011. (Doc. 11 Ex. M).
Petitioner then filed a petition for review with the Arizona Court of Appeals on August 30, 2011. (Doc. 11 Ex. N). The Court of Appeals agreed to review the case and examined the claims raised by Petitioner in his Rule 32 petition and the trial court's denial of Petitioner's request for post-conviction relief. The Arizona Court of Appeals denied relief on December 16, 2011. (Doc. 11 Ex. O). Petitioner sought review by the Arizona Supreme Court, which denied review on May 9, 2012. (Doc. 1 at 4).
C. Habeas Petition
Petitioner filed his Petition for Writ of Habeas Corpus (PWHC) in this Court on August 20, 2012, asserting five grounds for relief. (Doc. 1). In Ground One, Petitioner alleges his trial counsel was ineffective for disqualifying a witness "for personal reasons instead of for facts in evidence." Id. at 7. In Ground Two, Petitioner alleges his trial counsel was ineffective for failing to object to Petitioner's driver's license being admitted into evidence. Id. at 15. In Ground Three, Petitioner alleges his trial counsel was ineffective for failing to interview potential witnesses and for failing to interview the witness "that he wanted the jury to believe the officer misidentified his client for." Id. at 17. In Ground Four, Petitioner argues trial counsel was ineffective for failing to keep Petitioner informed of discoveries, strategies, and tactics related to the alibi and misidentification defenses. Id. at 18. Finally, in Ground Five, Petitioner alleges he has discovered additional witnesses that would have been available for trial had Petitioner's trial counsel conducted a proper investigation. Id. at 21.
Respondents argue that Petitioner's first claim "fails on the merits because Petitioner has not discharged his affirmative burden of proving both that counsel's performance was constitutionally deficient and that the state courts' denial of the claim was an unreasonable application of Strickland. " (Doc. 10 at 12). Respondents further argue that Ground Two is unexhausted and procedurally defaulted because Petitioner failed to raise this claim during post-conviction proceedings, that Ground Three is unexhausted and procedurally defaulted because Petitioner never argued to the state courts that trial counsel was ineffective for failing to call Issey Warrior to testify, and that Ground Four is unexhausted and procedurally defaulted because Petitioner failed to raise any issues in the state courts about his trial counsel's communications. Id. at 8-9. Finally, Respondents argue that although Ground Five is properly exhausted, it "is not cognizable in these proceedings because it does not present a federal question." Id. at 10.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the federal court's power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by section 2254(d).
A state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by fairly presenting them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, the prisoner must fairly present her claim in each appropriate state court... thereby alerting the court to the federal nature of the claim."). In Arizona, unless a prisoner has been sentenced to death, the highest court requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals, either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).
A claim is fairly presented if the petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner must have "characterized the claims he raised in state proceedings specifically as federal claims." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). "If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court." Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). "Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
However, "[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion" if there are no state remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). "This is often referred to as technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy." Thomas v. Schriro, 2009 WL 775417, *4 (D. Ariz. March 23, 2009). "If no state remedies are currently available, a claim is technically exhausted, " but, as discussed below, the claim is ...