United States District Court, D. Arizona
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, Magistrate Judge.
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Charles Gregory Watkins' ("Petitioner") Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the "Petition") (Doc. 1). Respondents have filed their Answer (Doc. 12). Petitioner did not file a reply. The matter is deemed ripe for consideration.
The Petition contains two ineffective assistance of counsel claims, each containing a number of sub-claims. While the Petition is timely, the undersigned finds that all of the claims are meritless. In addition, the undersigned finds that one of the sub-claims is procedurally defaulted. It is therefore recommended that the Court deny and dismiss the Petition.
At 9:53 p.m. and 10:09 p.m. on April 10, 2009, an undercover City of Phoenix police officer called a cell phone number from a restricted line to arrange the purchase of forty dollars of crack cocaine. (Doc. 1-1 at 2; Doc. 12-3 at 8). A female answered the phone, who agreed to meet the officer in the parking lot of a Church's Chicken restaurant. (Doc. 1-1 at 2; Doc. 12-3 at 10). Two other officers observed the meeting place from a discrete location. (Doc. 1-1 at 2). After 10:00 p.m., the officers saw a red Ford Bronco turn into the parking lot. ( Id.; Doc. 12-3 at 11). The vehicle circled the lot multiple times, then moved to the street exit. (Doc. 1-1 at 2; Doc. 12-3 at 12). Officers stopped the vehicle after following it for a few blocks. (Doc. 1-1 at 2-3).
The female driver of the vehicle admitted she spoke to the officer to arrange the drug transaction. ( Id. at 3). Petitioner was sitting in the vehicle's front passenger seat. ( Id. ). When an officer approached the front passenger side, the officer saw a glass pipe and "white rock-like substance" that was consistent with crack cocaine on the floorboard immediately behind Petitioner's seat. ( Id. at 3, 6). The substance was later confirmed to be crack cocaine with an approximate value of forty dollars. ( Id. at 3). A crack pipe was also found in the driver's purse. ( Id. ).
Officers searched Petitioner and found the following in the pockets of Petitioner's pants: $1, 686 in cash, a cell phone that had received calls from a restricted number at the precise times the officer had called to arrange the drug transaction, and a sliver of a white rock-like substance later determined to be 9.3 milligrams of crack cocaine. ( Id. at 3-4).
On April 17, 2009, Petitioner was indicted on two counts: (i) possession for sale of narcotic drugs and (ii) possession of drug paraphernalia. (Doc. 12-1 at 2-3). In June 2009, Petitioner's trial counsel filed a "Motion to Dismiss Indictment with Prejudice, or, alternatively, Motion to Remand for a Redetermination of Probable Cause" (the "Motion to Dismiss/Motion to Remand"). ( Id. at 10-11). The motion alleged that the indictment was predicated on false testimony that on the night of the search, Petitioner possessed forty dollars worth of crack cocaine and drug paraphernalia. ( Id. ). The trial court held oral argument on the motion. ( Id. at 52-68). The State conceded that the officer mistakenly testified before the Grand Jury that the (i) Church's Chicken restaurant had "been closed for several hours" when the red Ford Bronco pulled into the parking lot and (ii) that officers had field-tested the white substance in Petitioner's pocket prior to the Grand Jury proceeding. ( Id. at 58-59). Church's Chicken was actually open until 11:00 p.m. and officers had not field-tested the substance in Petitioner's pocket at the time of the Grand Jury proceeding. ( Id. ). The substance, however, had been later lab-tested and was confirmed to be crack cocaine. ( Id. at 59). The State argued that the errors in the officer's testimony were not material because the substance found within Petitioner's arm reach behind the front passenger's seat was field-tested before the Grand Jury proceeding and was confirmed to be forty dollars worth of crack cocaine. ( Id. ). The State asserted that even without the evidence of the crack cocaine in Petitioner's pocket, the State would have gone forward and argued that probable cause still would have been found. ( Id. ).
The trial court found that the officer did err in his testimony before the Grand Jury, but ruled that the testimony was not a material error "since it appears clear that the charge in this case, which is possession for sale of a narcotic drug, clearly relates to the cocaine that was behind the seat." ( Id. at 63-64). The trial court noted that the issue as to whether Petitioner had constructive possession of the forty dollars in crack cocaine is an issue for the trier of fact. Finding that some evidence existed that Petitioner had constructive possession of the crack cocaine behind his seat, the trial court denied the Motion to Dismiss/Motion to Remand. ( Id. at 64).
On July 21, 2009, Petitioner's trial counsel filed a Motion to Suppress, arguing that (i) the traffic stop was not justified; (ii) there was no reasonable suspicion of criminal activity; and (iii) the search of the vehicle was unlawful. ( Id. at 86-97). After holding an evidentiary hearing, the trial court denied the Motion to Suppress. ( Id. at 99-170).
On August 17, 2009, Petitioner's trial counsel filed a Motion in Limine to preclude the statements made by the driver of the vehicle Petitioner was in on the night of Petitioner's arrest. ( Id. at 176-181). The trial court denied the Motion in Limine. (Doc. 12-2 at 12). The trial court found that Petitioner and the driver were co-conspirators and the statements made by the driver on the cell phone were in furtherance of that conspiracy, thereby rendering the driver's statements not hearsay under Rule 801(D)(2)(E) of the Arizona Rules of Evidence. ( Id. at 11-12).
On September 1, 2009, a jury found Petitioner guilty of possession for sale of narcotic drugs and possession of drug paraphernalia. (Doc. 12-5 at 6; Doc. 12-6 at 77). The trial court sentenced Petitioner to a total of fourteen years on both counts. (Doc. 12-4 at 76-80).
Petitioner timely appealed. ( Id. at 83-84). Petitioner's appellate counsel raised one claim alleging that there was insufficient evidence to support Petitioner's convictions. (Doc. 12-5 at 2-20). On October 13, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. ( Id. at 55-62). Petitioner did not petition the Arizona Supreme Court for review.
On November 14, 2011, Petitioner filed a notice of post-conviction relief ("PCR"). ( Id. at 64-66). The trial court appointed PCR counsel. ( Id. at 68-69). PCR counsel was unable to find a colorable claim for relief. ( Id. at 71). On May 30, 2012, Petitioner filed a pro se PCR petition, which raised two claims. ( Id. at 74-111). Petitioner argued that his trial counsel was ineffective for "failing to prepare and present a proper defense at trial...." ( Id. at 77). Petitioner also argued that his appellate counsel was ineffective for failing to raise certain additional issues on direct appeal. ( Id. at 77-78). On August 15, 2012, the trial court ruled that the PCR petition failed to raise a colorable claim and dismissed the PCR petition. (Doc. 12-6 at 26-31). Petitioner filed a petition for review in the Arizona Court of Appeals. ( Id. at 33-63). On January 7, 2014, the Arizona Court of Appeals granted review, but denied relief. ( Id. at 68-72).
On October 9, 2014, Petitioner filed the Petition seeking federal habeas relief (Doc. 1). Respondents answered on February 3, 2015 (Doc. 12). Petitioner has not replied.
II. FEDERAL HABEAS LAW
Respondents do not argue, and the undersigned does not find, that Petitioner failed to exhaust the claims in the Petition or that the Petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214. The following principles are relevant to the review of Petitioner's grounds for habeas relief.
A. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). The procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); s ee also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate "cause, " a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate "prejudice, " the petitioner must show that the alleged constitutional violation "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 ("Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied fundamental fairness' at trial.").
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a "constitutional violation has probably resulted in the conviction of one who is actually innocent ...