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Bonillas v. Ryan

United States District Court, D. Arizona

November 18, 2016

Angel Santa Maria Bonillas, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Honorable Cindy K. Jorgenson United States District Judge

         Petitioner Angel Santa Maria Bonillas filed an pro se Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty). (Doc. 25.) Respondents filed an Answer, and Petitioner filed a Reply (Traverse). (Docs. 26, 53.) This matter was referred to Magistrate Judge Leslie Bowman for a Report and Recommendation (R & R) pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 10.) Magistrate Judge Bowman issued an R & R on March 23, 2016 recommending that this Court deny the Petition. (Doc. 57.) After numerous extensions, Petitioner submitted his Objections to the R & R on July 5, 2016, and Respondents filed a Response on August 29, 2016. (Docs. 69, 71.)

         The Court has reviewed the amended petition (Doc. 25 and exhibits), Respondents' response (Doc. 26) and exhibits, Petitioner's traverse (Doc. 53), the R & R (Doc. 57), Petitioner's objections to the R & R (Doc. 69), and Respondents' response to the Objections (Doc. 71.) After de novo review, the Court finds no error and will adopt the R & R in its entirety.

         I. Summary of the Case

         The R & R states the following summary of the case:

Bonillas was found guilty of second-degree murder after a jury trial. (Doc. 26-1, p. 2) He was convicted of killing his nephew, Adan, after they got into an argument at a birthday party for Bonillas's mother. (Doc. 26-1, pp. 3-4); (Doc. 26, pp. 3-4) The party was held at the home of Adan's brother, Adrian. Id. When the argument became heated, Adrian noticed Bonillas had a gun and a knife and became concerned. Id. He summoned the police and another brother, Abram, for help. Id. He then separated Adan and Bonillas by taking Adan outside and locking Bonillas in the house behind a metal security screen door. Id. Shortly after Abram arrived in his car, Bonillas shot twice through the metal security door fatally wounding Adan. Id. Adan's brothers drove him away from the house and called for an ambulance. Id. The brothers testified at trial that Adan was unarmed. (Doc. 26-9, pp. 15, 51); (Doc. 26-10, pp. 25, 43); (Doc. 26-13, p. 22) Forensic pathologist Cynthia Porterfield testified that Adan was killed by a bullet, which was deformed when it passed through a metal screen door. (Doc. 26-9, pp. 67-68) She opined that because the bullet's trajectory was affected by its collision with the metal screen door, it was not possible to determine the location of the gun in relation to the victim. (Doc. 26-9, p. 71); (Doc. 26-10, pp. 5-6)
When Deputy Loza arrived at the scene of the shooting, he found Bonillas in a nearby alley. (Doc. 26-11, p. 12) Deputy Loza asked, “What's going on?” Id., p. 13 Bonillas told the deputy “he did it and he was turning himself in.” Id. Loza put Bonillas in handcuffs and escorted him toward his patrol car. Id., p. 14 Bonillas explained “someone was trying to punk him . . . so he had to do him.” (Doc. 26-11, p. 14) He saw detectives in the alleyway and stated “there is a .45 in the alley.” (Doc. 26-11, p. 16) He continued, “He's a pretty tough kid; I think he's going to make it; I was trying to wing him.” Id., p. 17 He explained, “I think he had a gun, I'm pretty sure.” (Doc. 26-11, p. 17)
A neighbor testified that she heard a shot and saw two men in the carport. (Doc. 26-12, p. 39) One of the men was holding a gun. Id. The men got in a car and drove off. Officers later found two guns on the floor of Abram's car. Abram admitted one of the guns belonged to Adan, the victim. (Doc. 26-10, p. 41)
Bonillas's theory at trial was that he shot in self-defense because Adan had a gun, which ended up in Abram's car when the brothers drove Adan from the scene of the shooting. (Doc. 26-13, p. 30). Trial counsel argued Abram and Adrian testified falsely in order to have Bonillas wrongfully convicted. (Doc. 26-13, pp. 28-29)
The trial court sentenced Bonillas to a sixteen-year term of imprisonment. (Doc. 26-1, p. 3) On direct appeal, Bonillas argued (1) his statements to the police should have been suppressed as a violation of Miranda and (2) he should have been given a new trial because Deputy Loza's report was inadvertently sent to the jury for use in its deliberations. (Doc. 26-1, p. 3) The Arizona Court of Appeals affirmed his conviction and sentence on June 17, 2010. Id. Bonillas did not seek review from the Arizona Supreme Court. (Doc. 26, p. 4); (Doc. 26-1, p. 12)
On January 29, 2010, Bonillas filed notice of post-conviction relief. (Doc. 26-1, p. 16) In his petition, he argued (1) he found evidence that Deputy Loza testified inaccurately in another trial, (2) the state committed prosecutorial misconduct by failing to disclose that evidence, (3) trial counsel was ineffective for advising him not to testify at trial, (4) trial counsel was ineffective for failing to secure testimony from the jurors establishing that they relied on Loza's report during deliberations, and (5) appellate counsel was ineffective for failing to challenge the introduction of Loza's report to the jury. (Doc. 26-1, pp. 21-25) The trial court denied the petition on July 15, 2011. (Doc. 26-16, p. 10) The trial court denied Bonillas's motion for reconsideration on August 11, 2011. (Doc. 26-16, p. 14)
The Arizona Court of Appeals granted review but denied relief on January 27, 2012. (Doc. 26-1, p. 27)
The Arizona Supreme Court denied review on July 11, 2012. (Doc. 26-1, p. 35)
Bonillas filed a second notice of post-conviction relief on September 18, 2012. (Doc. 26-2, p. 2) The notice was dismissed on July 24, 2014 on the defendant's motion. (Doc. 26-16, p. 27)

(Doc. 57 at 1-3.)

         Petitioner filed an amended petition for writ of habeas corpus on September 3, 2014, raising the following claims: (1) trial counsel was ineffective for failing to interview Francisco Santamaria who could have testified that Adan told Santamaria that he, Adan, was going to kill Bonillas because Bonillas had Adan's father sent to prison; (2) trial counsel was ineffective for failing to conduct DNA tests of the black gun later found in Abram's car and for failing to impeach witnesses; (3) trial counsel was ineffective for failing to hire a ballistics expert; (4) trial counsel was ineffective for failing to argue self-defense; (5) the state failed to disclose Loza's history of perjury; (6) trial counsel, appellate counsel, and PCR (post-conviction relief) counsel were ineffective in their handling of his motion for a new trial, which was based on the fact that Loza's report was inadvertently given to the jury to use during deliberations; and (7) the prosecutor gave false testimony concerning how the bullet was broken by the metal screen. (Doc. 25.) In their answer, Respondents argue Petitioner's claims are procedurally defaulted or should be denied on the merits. (Doc. 26.) Petitioner filed a Traverse on March 17, 2016. (Doc. 53.)

         II. GOVERNING LEGAL STANDARDS

         A. In General

         The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991).

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, __ U.S. __, 134 S.Ct. 10, 16 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Landrigan, 550 U.S. at 473; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). A determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when applying the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86 (2011); Williams v. Taylor, 529 U.S. 362 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] 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 . . . beyond any possibility for fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103 (alterations in original).

         B. Exhaustion of State Remedies

         Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520 (1982).

         Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275 (1971). Fair presentation requires that a state prisoner must alert the state court “to the presence of a federal claim” in his petition; simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33 (2004). The Petitioner must explicitly alert the state court that he is raising a federal constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Casey v. Moore, 386 F.3d 896, 910-11 (9th Cir. 2004).

         Furthermore, in order to “fairly present” his claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). But for non-capital cases in Arizona, “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998).

         In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).

         C. Procedural Default

         With limited exception, where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review. Teague v. Lane, 489 U.S. 288, 298 (1989).[1]

         A procedural default may preclude a prisoner's habeas petition from federal review in two ways. First, the petitioner may be precluded where he presented his claims to the state court, which denied relief based on independent and adequate state grounds. Coleman, 501 U.S. at 728.

         Second, the petitioner may be precluded where he “failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1 (citations omitted).

         Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result of the violation. Teague, 489 U.S. at 298 (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”).

         In addition, a habeas petitioner must show actual prejudice, meaning that he “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and obtain review by the federal courts. Id.

         The Supreme Court has recognized that “the cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct ‘a fundamental miscarriage of justice.'” Coleman, 501 U.S. 722, 748 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrara v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404. Further, in order to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).

         In addition, for certain claims, a limited avenue to excuse procedural default exists under Martinez v. Ryan.132 S.Ct. 1309, 1315 (2012). Because “[t]here is no constitutional right to an attorney in state post-conviction proceedings . . . a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752 (internal citations omitted). Consequently, any ineffectiveness of PCR counsel will ordinarily not establish cause to excuse a procedural default. The Supreme Court, however, has recognized a “narrow exception” to Coleman's procedural default principle: “inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Ma ...


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