United States District Court, D. Arizona
Honorable Cindy K. Jorgenson United States District Judge
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.)
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.
Summary of the Case
& 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.)
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.
GOVERNING LEGAL STANDARDS
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
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).
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
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
Exhaustion of State Remedies
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
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).
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
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).
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).
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.
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
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.”).
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.
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).
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.”