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Washington v. Ryan

United States District Court, D. Arizona

May 24, 2016

Hubert Washington, Jr., Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          BERNARDO P. VELASCO, UNITED STATES MAGISTRATE JUDGE

         Petitioner has filed a pro se Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. (Doc. 1). Respondents initially filed a “Limited Answer” wherein they argued that Petitioner’s claims were barred by the statute of limitations and, alternatively, were procedurally defaulted. (Doc. 12). This Court determined that the Petition was timely filed, but dismissed Ground One (b) and Grounds Two and Three as procedurally defaulted and directed Respondents to file an answer addressing the merits of Ground One (a) and (c).[1] (Doc. 18). Respondents have now filed their Supplemental Answer (Doc. 19) and Petitioner has filed a Reply to Respondents’ Supplemental Answer. (Doc. 20). Petitioner has also filed a Motion Requesting Release from Prison Pending the Court’s Ruling (Doc. 21) which Respondents oppose (Doc. 22). For the reasons discussed below, the Court: (1) denies Petitioner’s Petition for Writ of Habeas Corpus; and (2) denies Petitioner’s Motion Requesting Release from Prison Pending the Court’s Ruling.

         I. Factual and Procedural Background

         Petitioner stands convicted of two counts of sexual assault. (See Doc. 12, Exh. J at 2). He was sentenced to consecutive prison terms totaling twelve years and three months. (Doc. 12, Exh. J at 2). The Arizona Court of Appeals summarized the facts as follows:

[Petitioner] gave the victim, his cousin, a ride and engaged in a series of sexual acts with him. The acts took place in a van and at an apartment, in the shower and on the bed. The victim repeatedly told [Petitioner] that he did not want to engage in the behavior and tried to push him away. After [Petitioner] dropped him back off near his place of work, the victim called the police and reported the attacks. [Petitioner] was charged with three counts of sexual assault, and a jury found him guilty on two of those counts.

Id.

         As discussed in further detail in this Court’s January 22, 2015 Order, Petitioner, through counsel, filed an appeal raising three issues. (Doc. 18 (citing Doc. 12, Exh. G)). The appellate court affirmed the convictions and sentences and the Arizona Supreme Court denied Petitioner’s Petition for review. (Doc. 12, Exhs. G, J, M).

         Additionally, Petitioner, through counsel, filed a Rule 32 Petition for Post-Conviction Relief (“PCR Petition”) alleging that he was deprived of his state and federal constitutional rights to effective assistance of counsel because: (1) trial counsel failed to object to the jury instruction that defined sexual assault incorrectly by eliminating the mens rea as to the lack of consent, and appellate counsel was ineffective for failing to raise this issue as fundamental error; and (2) trial counsel was ineffective for failing to object to improper vouching by the prosecutor during closing argument. (Doc. 12, Exh. Q). The trial court summarily denied Petitioner’s PCR Petition. (Doc. 12, Exh. U.). Thereafter, Petitioner filed a pro se motion for rehearing, which the trial court denied. (Doc. 12, Exhs. V, W).

         Through counsel, Petitioner filed a petition for appellate court review of the trial court’s denial of his PCR Petition. (Doc. 12, Exh. X). After permitting Petitioner to file supplemental authority in support of his argument that the jury instruction given by the trial court constituted fundamental error, the appellate court granted review, but denied relief. (Doc. 12, Exh. CC). The Arizona Supreme Court subsequently denied Petitioner’s petition for review. (Doc. 12, Exh. FF).

         As discussed in this Court’s January 22, 2015 Order, at issue are Petitioner’s claims raised in his federal Petition for Writ of Habeas Corpus that: (1) “the Prosecutor misled the jury on the law she claimed I violated by leaving out, Intentionally or Knowingly, from [A.R.S. §] 13-1406, any variation on what’s already written is a violation of my fifth and fourteenth Amendment rights, and my attorney, knew the Prosecutor was going to do this because it was discussed between the judge, Prosecutor, and Mr. Kingston my defence [sic] attorney[]” (Ground One (a)); and (2) trial counsel rendered ineffective assistance by failing to object to the prosecutor vouching for the victim by invoking the victim’s call to the 911 operator during closing argument (Ground One c)). (Doc. 1 at 6). The Court directed the parties to address the merits of these claims in their supplemental briefing.[2] (Doc. 18 at 13).

         II. Discussion

         A. Standard for Review of Habeas Claims on the Merits

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court’s adjudication of the claim “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, ” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” id. at § 2254(d)(2).

         To determine whether a state court ruling was “contrary to” or involved an “unreasonable application” of federal law under subsection (d)(1), the Court must first identify the “clearly established Federal law, ” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner’s state court conviction became final. Williams v. Taylor, 529 U.S. 362, 412 (2000); Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Renico v. Lett, 559 U.S. 766, 778-79 (2010)); see Carey v. Musladin, 549 U.S. 70, 76-77 (2006). Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S. at 381; see Musladin, 549 U.S. at 77. Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be “persuasive” in determining what law is clearly established and whether a state court applied that law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003) overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . . case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court’s application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court’s decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

         The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410 (emphasis in original). Under AEDPA, “[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must 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 well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see Frost v. Pryor, 749 F.3d 1212, 1225-1226 (10th Cir. 2014) (“[I]f all fairminded jurists would agree the state court decision was incorrect, then it was unreasonable . . . If, however, some fairminded jurists could possibly agree with the state court decision, then it was not unreasonable and the writ should be denied.”).

         With respect to § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing the record might disagree” about the finding in question, “on habeas review that does not suffice to supersede the trial court’s . . . determination.” Rice v. Collins, 546 U.S. 333, 341-342 (2006); see Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (explaining that on habeas review a court “cannot find that the state court made an unreasonable determination of the facts in this case simply because [the court] would reverse in similar circumstances if th[e] case came before [it] on direct appeal”).

         As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds as discussed in Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.

         The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “‘that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.’” See Burt v. Titlow, ___U.S. ___, 134 S.Ct. 10, 15 (2013) (quoting Wood, 558 U.S. at 293, 301).

         Significantly, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 182; see Murray v. Schriro, 745 F.3d at 998 (“Along with the significant deference AEDPA requires us to afford state courts’ decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our responsibilities under § 2254(d)(1).”). The Ninth Circuit has observed that “Pinholster and the statutory text make clear that this evidentiary limitation is applicable to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n. 6 (2013) (citing § 2254(d)(2) and Pinholster, 563 U.S. at 184 n. 7). Therefore, the Ninth Circuit has explained:

[F]or claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d).

Gulbrandson, 738 F.3d at 993-94 (internal citation omitted).

         B. Standard for Assessing Claims of Ineffective Assistance

         Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, the petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.

         To satisfy Strickland’s first prong, the petitioner “must overcome the presumption that, under the circumstances, the challenged action []might be considered sound trial strategy.[]” Id. at 689 (internal quotation marks omitted). With respect to Strickland’s second prong, a petitioner must affirmatively prove prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689; see also Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is never an easy task.”); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010). When the standards created by Strickland and § 2254(d) apply in tandem, review is “doubly” deferential. Richter, 562 U.S. at 105 (citations and quotations omitted). “[T]he question is not whether counsel’s actions were reasonable . . . ...


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