United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, Magistrate Judge.
Petitioner Benjamin Scott Hammer has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a supporting memorandum. (Docs. 1, 2.) In their answer, Respondents argue that Petitioner is not entitled to habeas corpus relief because his claims are either procedurally barred from federal habeas corpus review or lack merit. (Doc. 11.) Petitioner has not filed a reply in support of his Petition and the deadline to do so has passed. ( See Doc. 4.) For the reasons below, the Court recommends that the Petition be denied.
I. Factual and Procedural Background
A. Charges, Trial, and Sentencing
In February 2008, Petitioner was indicted in the Maricopa County Superior Court on one count of second-degree murder. (Doc. 11, Ex. A.) Before trial, Petitioner requested a competency evaluation because he claimed a 2007 brain injury caused a memory impairment that rendered him unable to assist in his defense. (Doc. 11, Ex. J at 4.) The trial court appointed two experts to evaluate Petitioner and, at a subsequent hearing, considered reports from the experts, testimony from defense expert Dr. Sullivan, and testimony from the neurosurgeon who had removed a blood clot from Petitioner's brain in 2007. ( Id. ) The trial court found Petitioner competent to stand trial. ( Id. ) After a trial, the jury found Petitioner guilty of second-degree murder, and the trial court sentenced Petitioner to an aggravated term of eighteen-years' imprisonment. ( Id. )
Petitioner's second-degree murder conviction was based on the following events, as described by the Arizona Court of Appeals. On January 31, 2008, two men, Chris and Merritt, drove Merritt's truck from California to Phoenix. (Doc. 11, Ex. J at 2.) In Phoenix, they met Petitioner at the house he shared with his girlfriend, Ellacia. ( Id. ) That evening, Petitioner became "sloppy drunk." ( Id. ) Petitioner told his friend Kim that Merritt had guns and a nice truck and said "something about jacking [Merritt]." ( Id. )
Kim later saw Merritt in his truck, with Petitioner standing next to the open door. ( Id. ) Petitioner put Merritt in a headlock and punched him in the face. ( Id. ) Merritt was upset that he "got hit for no reason" and left to go to Angie's house. ( Id. ) Chris and Petitioner later went to Angie's house. ( Id. ) Petitioner left Angie's house early in the morning on February 1, 2008. ( Id. ) Later that morning, Merritt found his truck window broken and several items missing, including a Glock 9mm handgun that had been in a secure lockbox. ( Id. ) Merritt called his dad to get the gun's serial number and called the police to report the incident. ( Id. )
Later that day, Merritt, Chris, and Petitioner went to the house Petitioner shared with Ellacia. ( Id. at 3.) Merritt and Petitioner were in the backyard. ( Id. ) Chris was in the front yard when he heard a gunshot that "sounded close, " and then saw Petitioner walk from the backyard holding Merritt's gun. ( Id. ) Petitioner also had Merritt's cell phone and gun magazines. ( Id. ) Chris walked away, but Petitioner followed him and fired the gun once or twice. ( Id. )
Chris, Petitioner and another person, David, returned to Ellacia's house. ( Id. ) Petitioner backed Merritt's truck up to the backyard gate and dragged Merritt's body to the truck. ( Id. ) Chris helped him lift the body into the truck bed. ( Id. ) Petitioner drove the truck into the desert. ( Id. ) Chris watched Petitioner pull Merritt's body onto the road and drag it into a wash. ( Id. ) When Ellacia got home, her gate was open and there was blood in the backyard. ( Id. ) She called police who discovered a pool of blood, Merritt's wallet and identification, and a handwritten note containing the serial number of his handgun. ( Id. ) Testing revealed that the blood was Merritt's. ( Id. )
Petitioner was arrested at around 1:15 a.m. on February 2, 2008. ( Id. ) He had in his possession Merritt's gun, two loaded magazines, and the key to Merritt's truck. ( Id. ) Petitioner was wearing Merritt's sweatshirt, which was stained with Merritt's blood. ( Id. ) Gunshot residue testing revealed Petitioner may have "discharged a firearm, may have been in close proximity of a firearm discharged, or may have contacted something with [gunshot residue] on it." ( Id. at 3-4.) Later that day, Chris went to the police station and explained what had happened, omitting his involvement. ( Id. at 4.) Chris later admitted his involvement and led police to the body. ( Id. ) Merritt was killed by a single gunshot to the back of his head with a 9mm bullet from a Glock-type handgun. (Doc. 11, Ex. J at 4.)
B. Direct Appeal
Petitioner filed a direct appeal challenging his conviction for second-degree murder. (Doc. 11, Exs. B, J.) Petitioner raised the following claims: (1) the trial court violated his due process rights by using the wrong standard to determine his competency to stand trial and the evidence did not support the court's competency decision (Doc. 11, Ex. B at ii); (2) the trial court erred by precluding evidence related to Petitioner's third-party culpability defense that Chris killed Merritt and blamed Petitioner by taking advantage of his memory impairment ( Id. at ii, 34); (3) the trial court violated Rule 404(b) of the Arizona Rules of Evidence by admitting other act evidence and violated Petitioner's Confrontation Clause rights by admitting Merritt's statements about his truck being burglarized and his gun being stolen ( Id. at ii, 49); (4) the trial court abused its discretion by denying Petitioner's request for a Willits instruction regarding the police's failure to preserve a lockbox cable from Merritt's truck ( Id. ); and (5) the evidence was insufficient to support his conviction. ( Id. at ii, 62.) The appellate court rejected Petitioner's claims and affirmed his conviction and sentence. (Doc. 11, Ex. J.) Petitioner sought review in the Arizona Supreme Court, and the court denied review on December 4, 2012. (Doc. 11, Ex. H.)
C. Post-Conviction Proceedings
On December 11, 2012, Petitioner filed a notice of post-conviction relief in the trial court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 11, Ex. K.) On February 5, 2014, Petitioner, through counsel, filed a petition for post-conviction relief asserting three allegations of ineffective assistance of trial counsel. (Doc. 11, Ex. L.) The trial court denied relief. (Doc. 11, Ex. N.) Petitioner moved for a rehearing, which the court denied on September 29, 2014. (Doc. 11, Exs. O, P.)
On October 24, 2014, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 11, Ex. Q.) The State filed a response. (Doc. 11, Ex. R.) To date, the Arizona Court of Appeals has not ruled on the petition for review. (Doc. 11, Ex. S.) However, the status of that appeal is inconsequential because the claims of ineffective assistance of counsel that Petitioner raised on post-conviction review are not presented in the pending Petition. ( Compare Docs. 1 and 2 with Doc. 11, Exs. L, Q.)
D. Federal Petition for Writ of Habeas Corpus
On September 28, 2015, Petitioner filed a petition for writ of habeas corpus in this Court raising the following claims: (1) the trial court violated Petitioner's federal constitutional right to due process by finding him competent to stand trial under the wrong standard, and failing to address the effect of his memory impairment on competency (Ground One) (Doc. 1 at 7); (2) the trial court violated Petitioner's federal due process rights by excluding evidence of third-party culpability (Ground Two) (Doc. 1 at 25); (3)(a) the trial court violated Petitioner's federal due process rights by admitting evidence of Petitioner's physical attack against Merritt and comments about wanting to steal Merritt's gun and truck the night before the incident (Ground Three (a)); (b) the trial court violated the Confrontation Clause by admitting testimony that Merritt claimed his gun had been stolen (Ground Three (b)); and (c) the trial court violated Brady v. Maryland, 373 U.S. 83 (1963), and California v. Trombetta, 467 U.S. 479 (1984), by failing to preserve the lockbox cable from Merritt's truck, which Petitioner alleges was potentially exculpatory (Ground Three (c)). (Doc. 1 at 35; Doc. 2 at 7-9.)
Respondents argue that Grounds Two, Three (a), and Three (c) are procedurally barred from federal habeas corpus review. (Doc. 11 at 9-14.) Respondents state that Grounds One and Three (b) are properly before the Court, but argue that Petitioner is not entitled to relief on those claims. (Doc. 11 at 9, 18-25.)
II. Exhaustion and Procedural Bar
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). 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' his claim in each appropriate state court... thereby alerting that court to the federal nature of the claim"); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same).
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 33. A "state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or brief... that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum... (2) through the proper vehicle, ... and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See Coleman, 501 at ...