United States District Court, D. Arizona
Eric J. Markovich United States Magistrate Judge
Petitioner Fernando Arnulfo Trejo filed a pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for sexual conduct with a minor under 15. (Doc. 1). Petitioner raises five grounds for relief based on trial counsel’s alleged ineffectiveness and due process violations: (1) trial counsel’s failure to obtain employment records for Rose Waltee; (2) trial counsel’s failure to discover and present further information about Charles Starcevich’s phone call with Rose Waltee; (3) trial counsel’s failure to impeach the daycare director’s testimony; (4) trial counsel’s failure to discover and present evidence of third party culpability; and (5) trial counsel’s failure to make a for cause challenge to a biased juror and failure to strike the juror. Petitioner also makes a claim of actual innocence, and further argues that the Court should consider his claims cumulatively when assessing prejudice.
Respondents filed their response contending Ground One is exhausted but only as to Petitioner’s ineffective assistance of counsel claim and not as to the due process claim. (Doc. 26). Respondents also contend that Grounds Two and Five are unexhausted and procedurally defaulted because Petitioner failed to raise these claims in his Rule 32 petition for post-conviction relief, nor did Petitioner present these claims to the Arizona Court of Appeals (“COA”). Respondents further contend that the ineffective assistance of counsel claims in Grounds Three and Four are unexhausted and procedurally defaulted because although Petitioner raised these issues in his Rule 32 petition, he failed to present them to the COA, and further that the due process claims in Grounds Three and Four are also unexhausted because Petitioner never fairly presented these claims to the state courts.
As to Ground One of the Petition, the Court 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, Four, and Five, the Court 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. Accordingly, the petition will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial, Sentencing, and Appeal
After two mistrials, a Pima County Superior Court jury found Petitioner guilty of sexual conduct with a minor under the age of 15. (Doc. 26 Ex. E). Petitioner was sentenced to a 13 year term of imprisonment. Id.
The Arizona COA summarized the facts of the case as follows:
On the morning of March 30, 2006, Trejo’s girlfriend, Crysta S., left her two-year-old daughter, N., in Trejo’s care at their home. When she returned at lunchtime, N. began to cry, saying “owie, owie, owie.” Crysta initially could not see anything wrong with N., but when she changed her diaper she noticed there was a spot of blood on the diaper and her vagina was tinged with blood. She took N. to urgent care, where the medical staff who examined her observed a large amount of fresh blood in her vaginal area. They concluded her injuries were likely the result of sexual abuse and referred her to Tucson Medial Center for a sexual assault examination, which revealed “obvious tearing to the [hymenal] region.”
(Ex. J a 2).
At his third trial, Petitioner “presented a multi-faceted defense of reasonable doubt as to whether an offense had been committed and whether, if there had, [Petitioner] committed it.” (Doc. 1 at 7). Specifically, Petitioner’s defense was that N’s injuries occurred prior to March 30, 2006 while she was visiting her grandmother and step-grandfather in Yuma, and additionally, that N’s uncles had given her a plastic horse shortly before March 30, 2006 and that she might have injured herself on the horse. Supporting Petitioner’s defense was an incident that occurred at Happy Faces Daycare in Yuma:
While changing [N’s] diaper, a daycare worker, Idalia Miranda, noticed that [N’s] vaginal lips were red, almost to the point of bleeding, the vaginal lips were open, and the genitals were swollen and damaged looking. Miranda testified that she had changed many diapers, including her own daughters, and had not seen anything like it before. At the time, [N] was also crying and saying “He’s coming. He’s coming.”
(Doc. 1-6 at 8-9) (internal citations omitted). Petitioner contends that this incident occurred prior to March 30, 2006, while at trial the state argued that the daycare incident did not occur until April 2006.
Following his conviction, Petitioner sought review in the Arizona COA and argued that the trial court had erred by 1) denying his motion for a mistrial on the grounds that a doctor gave improper opinion testimony; and 2) denying his motion for a new trial on the grounds that the prosecutor misstated the evidence. (Doc. 26 Ex. G). On June 18, 2009, the COA found no reversible error and affirmed Petitioner’s conviction and sentence. (Doc. 26 Ex. J).
B. Petition for Post-Conviction Relief
On July 17, 2009, Petitioner initiated proceedings in Pima County Superior Court for Rule 32 post-conviction relief (“PCR”). (Doc. 26 Ex. L). The trial court appointed counsel to represent Petitioner, and counsel filed the Rule 32 petition on January 4, 2010. (Doc. 26 Exs. M, O). Petitioner raised issues of ineffective assistance of counsel and newly discovered evidence. Petitioner first alleged that trial counsel was ineffective for 1) failing to obtain the work records for Rose Waltee, and 2) failing to expose an inconsistency in the daycare director, Marianna Velec’s, testimony. (Doc. 26 Ex. O). Petitioner alternatively argued that the work records constituted newly discovered evidence, and that the records would show when the daycare incident occurred and therefore undermine the state’s case that N had no injuries prior to being in Trejo’s care on March 30, 2006.
Petitioner subsequently moved for permission to amend his PCR petition, contending there was new evidence that Rose Waltee disclosed about Bob Letendre, Rose’s former husband and N’s step-grandfather, possibly molesting N. (Doc. 26 Ex. P.). The trial court granted Petitioner leave to file a supplemental PCR petition, which Petitioner filed on March 24, 2010. (Doc. 26 Exs. P, Q). Petitioner alleged that there was newly discovered evidence of third party culpability, and alternatively argued that his trial counsel was ineffective for failing to discover and present the evidence. Following an evidentiary hearing, the court denied PCR on March 31, 2011. (Doc. 26 Ex. X).
Petitioner then filed a petition for review with the Arizona COA on May 31, 2011. (Doc. 26 Ex. Z). Petitioner argued that his trial counsel was ineffective for failing to obtain Rose Waltee’s work records, and that the trial court abused its discretion in finding that there was no reasonable probability that the records would have changed the outcome of the trial. Petitioner also argued that he had presented newly discovered evidence of third party culpability, and that the trial court abused its discretion in finding that the evidence had no likelihood of affecting the verdict. The COA 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 PCR. The Arizona COA denied relief on August 17, 2011. (Doc. 26 Ex. AA). Petitioner sought review by the Arizona Supreme Court, which denied review on April 24, 2012. (Doc. 26 Exs. CC, DD).
Petitioner subsequently filed a second PCR notice on May 31, 2012, which the trial court dismissed as untimely on July 25, 2012. (Doc. 26 Exs. EE, FF). Petitioner filed a motion for rehearing on August 20, 2012, which the court denied on October 31, 2012, and a third PCR notice on September 18, 2012, which the court dismissed as moot. (Doc. 26 Exs. GG-II). The court noted that Petitioner had “failed to identify both the specific claim permitted under Rule 32.2(b), and the reason for not raising that specific claim in his First Notice of Post-Conviction Relief.” (Doc. 26 Ex. II). Petitioner filed a fourth PCR notice on November 23, 2012, which the court summarily dismissed because Petitioner “failed to state meritorious reasons to substantiate his claim for post-conviction relief, or any valid reason why the claim was not stated in any previous Petition or made in a timely manner.” (Doc. 26 Exs. JJ, KK).
C. Habeas Petition
Petitioner filed his Petition for Writ of Habeas Corpus (PWHC) in this Court on March 11, 2013, asserting five grounds for relief. (Doc. 1). In Ground One, Petitioner alleges his trial counsel was ineffective for failing to obtain employment records for Rose Waltee. In Ground Two, Petitioner alleges his trial counsel was ineffective for failing to discover and present further information about Charles Starcevich’s phone call with Rose Waltee, or, alternatively, that the State failed to disclose this evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In Ground Three, Petitioner alleges trial counsel was ineffective for failing to impeach Marianna Velec’s testimony. In Ground Four, Petitioner alleges his trial counsel was ineffective for failing to discover and present evidence of third party culpability. Finally, in Ground Five, Petitioner alleges that trial counsel failed to make a for cause challenge to a biased juror and that counsel failed to strike the juror.
Respondents argue that all of Petitioner’s due process claims in Grounds One through Five are unexhausted and procedurally defaulted because Petitioner did not present any constitutional due process claims to the state courts. Respondents further argue that the IAC and Brady claims in Grounds Two and Five are unexhausted and procedurally defaulted because Petitioner failed to present these claims to the trial court or the Arizona COA, and that the IAC claims in Grounds Three and Four are unexhausted and procedurally defaulted because Petitioner failed to present them to the COA. Finally, Respondents concede that Petitioner’s IAC claim in Ground One was fairly presented to the state courts and is properly exhausted.
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 COA, 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 ...