United States District Court, D. Arizona
A. Teilbrog, Senior United States District Judge
matter is before the Court on limited remand from the Ninth
Circuit Court of Appeals (the “Ninth Circuit”).
(See Doc. 112). The Ninth Circuit has ordered this
Court to consider, in light of intervening law, including
Martinez v. Ryan, 566 U.S. 1 (2012), Claim 3,
alleging ineffective assistance of counsel
(“IAC”) during the 15 months preceding Petitioner
Richard Djerf's guilty pleas, and Claim 5(2), alleging
IAC by appellate counsel in failing to raise the claim that
Petitioner's guilty pleas were invalid because the trial
court failed to advise him of the right to effective counsel
at trial. (Id. at 1). Additionally, in light of the
state court's subsequent ruling that the claim was raised
on direct appeal, the Ninth Circuit ordered reconsideration
of Claim 2, alleging that Petitioner's guilty pleas were
invalid because the trial court failed to adequately advise
him of the right to effective assistance of counsel at trial.
(Id. at 2).
Court ordered supplemental briefing to address whether cause
exists under Martinez to excuse the procedural
default under Claims 3 and 5(2), and whether Petitioner is
entitled to habeas relief under 28 U.S.C. § 2254 on
Claims 2, 3, or 5(2). (Doc. 113 at 2). The Court also ordered
Petitioner to include any requests for evidentiary
development with the supplemental briefing. (Id.).
filed a supplemental brief addressing the applicability of
Martinez to Claim 3, arguing that post-conviction
relief (“PCR”) counsel acted ineffectively in
litigating the claim in state court and requesting
evidentiary development on the procedural default of these
claims. (Doc. 124). Petitioner's supplemental
brief also argued that Petitioner was entitled to habeas
relief on Claim 2. (Id. at 37-40). Respondents filed
a response, (Doc. 125), and Petitioner filed a reply, (Doc.
September 1993, a Maricopa County Grand Jury indicted
Petitioner for four murders, burglary, kidnapping, sexual
assault, aggravated assault, attempted arson, theft, and
misconduct involving weapons. The trial court appointed two
attorneys to represent Petitioner, Michael Vaughn and Alan
Simpson. On February 15, 1995, Petitioner filed a pro
se motion for change of counsel, asking the court to
allow him to proceed pro se for all future
proceedings. At a previously scheduled hearing for pretrial
motions, the trial judge declined to rule on the motion,
determined that Petitioner should think about his decision
for a few days, and scheduled a hearing on Petitioner's
motion for the following week.
hearing on Petitioner's motion, Petitioner informed the
court that he had “very thoroughly” discussed the
matter with counsel. (RT 2/23/95 at 4). The court then
inquired why Petitioner wanted to remove Mr. Vaughn and Mr.
Simpson from his case and represent himself. (Id. at
11). Petitioner advised the court that he was unhappy with
his representation because counsel had not been keeping him
advised of what was happening in his case and that “I
just assume that I can do this myself.” (Id.).
The trial court strongly disagreed that Mr. Vaughn and Mr.
Simpson were not representing him well, noting their
interviews with many witnesses,  their work on the
consolidated DNA hearing, and their handling of other experts
in fingerprints and handwriting analysis. (Id. at
11-12). Petitioner indicated that he understood all the work
his counsel had put into his case. (Id.). Other than
the alleged lack of communication, Petitioner did not express
any other examples of ineffectiveness. (RT 2/27/95; 2/23/95).
The court held that Petitioner voluntarily, knowingly, and
intelligently waived his right to counsel.
prosecution filed a motion to determine Petitioner's
competence to waive counsel and conduct his own defense.
Petitioner consented to such an evaluation to “remove
any doubt as to . . . competence.” The trial court
ordered a prescreening evaluation to determine whether a
complete competency examination was warranted. Dr. Jack Potts
evaluated Petitioner and pronounced him competent. The trial
court reaffirmed its finding that Petitioner be allowed to
proceed pro se.
decided to enter into a plea agreement with the State,
pleading guilty to four counts of first degree murder. The
agreement expressly stated that no limits would be placed on
sentencing, and Petitioner could be sentenced to death for
any or all of the murder counts. In exchange, the State
agreed to dismiss the remaining criminal counts. At the plea
hearing, the trial court informed Petitioner of certain
constitutional rights being relinquished under the plea
agreement, acknowledged Dr. Potts's prescreening report,
reaffirmed the finding of competency, and concluded that
Petitioner's guilty pleas were made knowingly,
intelligently, and voluntarily.
subsequently withdrew his waiver of counsel and accepted
representation for the remainder of the sentencing
proceedings. Petitioner requested and received the
appointment of three mental health experts, a psychologist, a
neuropsychologist, and a neurologist. Ultimately, Petitioner
chose not to submit any reports from his mental health
experts. The trial court conducted aggravation and mitigation
hearings and imposed the death sentence on Petitioner on each
of the four counts. On direct appeal, the Arizona Supreme
Court affirmed, see Djerf, 959 P.2d 1274, and the
U.S. Supreme Court denied a petition for writ of certiorari,
Djerf v. Arizona, 525 U.S. 1024 (1998).
2000, the Arizona Supreme Court issued the mandate in
Petitioner's case and appointed PCR counsel, Jamie
McAlister. (Doc. 95 at 6). PCR counsel filed an initial
petition. (Id.). Counsel requested, and the court
granted, the appointment of a mental health expert.
(Id.). Counsel filed an amended PCR petition.
(Id.). Counsel chose not to include any mental
health report in support of the amended petition.
(Id.). After the amended petition was filed,
Petitioner's mental health expert conducted additional
testing, but the results of such testing were not submitted
to the court. (Id.). The trial court summarily
denied PCR relief. (Id.). The Arizona Supreme Court
denied a petition for review. (Id.).
filed a preliminary Petition for Writ of Habeas Corpus in
this Court on February 27, 2002, (Doc. 1), and an amended
petition on July 29, 2003, (Doc. 55). In two subsequent
orders, filed in 2005 and 2008, the Court ruled that three
claims-relevant to the instant remand-were technically
exhausted but procedurally defaulted because Petitioner no
longer had an available state remedy: (1) Claim 3, alleging
IAC of Petitioner's trial counsel during the
approximately fifteen months they represented him during
pre-trial proceedings, (Doc. 94 at 5-8); (2) Claim 2,
alleging that Petitioner's guilty plea was not knowing,
intelligent, and voluntary because the trial court did not
adequately inform him that by pleading guilty, he was
forfeiting his right to proceed to trial represented by
competent counsel, (Doc. 95 at 20); and (3) Claim 5(2),
alleging that Petitioner's appellate counsel performed
ineffectively by failing to raise that the trial court
inadequately advised Petitioner that he had the
constitutional right to proceed to trial with competent
counsel, (id. at 28). Thus, the Court did not
consider Claims 3, 2, or 5(2) on the merits.
March 17, 2009, Petitioner filed a successive notice of PCR,
which the state court dismissed on April 6, 2009. (Doc. 124-1
at 4). The trial court held that Claim 2 was raised on direct
appeal to the Arizona Supreme Court, in contrast to this
Court's earlier order. (Compare Id. at 4,
with Doc. 95 at 20). The Arizona Supreme Court
denied review on September 23, 2009. (Doc. 125 at 7).
Petitioner's appeal from this Court's denial of
habeas relief was pending, the U.S. Supreme Court decided
Martinez v. Ryan, holding that, where a Petitioner
must raise IAC claims in an initial PCR proceeding, failure
of counsel in that proceeding to raise a substantial trial
IAC claim may provide cause to excuse the procedural default
of that claim. 566 U.S. at 17. Petitioner subsequently filed
a motion seeking a partial remand of his appeal in light of
Martinez. (Doc. 124 at 2). The Ninth Circuit granted
Petitioner's motion and remanded this case for
reconsideration of Claim 3 in light of Martinez, as
well as Claim 2 in light of the state court's subsequent
ruling. (Doc. 112).
Claim 3, Petitioner contends that both trial counsel rendered
IAC during the approximately fifteen months they represented
him during pre-trial proceedings. Petitioner argues that the
Court should excuse Claim 3's procedural default because
there is a reasonable probability that PCR would have been
granted had PCR counsel not performed deficiently. (Doc. 124
at 7-40). Respondent rejoins that Petitioner has failed to
show that PCR counsel was ineffective for failing to raise a
meritless claim. (Doc. 125 at 15-27).
Exhaustion of State Remedies Legal Standard
prisoner is generally not entitled to habeas relief in
federal court unless he has first exhausted all available
state law remedies either on direct appeal or through
collateral proceedings. 28 U.S.C. § 2254(b) (2012). To
exhaust a claim, a petitioner must “fairly
present” it to the state courts, “thereby
alerting [the state courts] to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29
(2004). Failure to exhaust federal claims in state court
results in procedural default of those claims for habeas
purposes if “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 v. Thompson, 501 U.S. 772,
735 n.2 (1991).
because the doctrine of procedural default is based on
comity-versus jurisdiction-federal courts retain the power to
consider the merits of procedurally defaulted claims.
Reed v. Ross, 468 U.S. 1, 9 (1984). Habeas review of
a defaulted claim is generally barred unless a petitioner
“can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law.” Coleman, 501 U.S. at 750. Ordinarily,
“cause” to excuse a default exists if a
petitioner can demonstrate that “some objective factor
external to the defense impeded counsel's efforts to
comply with the State's procedural rule.”
Id. at 753 (quoting Murray v. Carrier, 477
U.S. 478, 488 (1986)). In Coleman, the Supreme Court
held that IAC in PCR proceedings does not establish cause for
the procedural default of a claim. Id.
Martinez v. Ryan, however, the Court established a
“narrow exception” to the rule announced in
Coleman. The Court explained:
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
566 U.S. at 17; see also Trevino v. Thaler, 133
S.Ct. 1911, 1918 (2013) (noting that Martinez allows
a federal habeas court to find “cause” if
“the claim of ‘ineffective assistance of trial
counsel' was a ‘substantial' claim [and] the
‘cause' consisted of there being ‘no
counsel' or only ‘ineffective' counsel during
the state [PCR] proceeding” (quoting Martinez,
566 U.S. at 17)).
demonstrate cause and prejudice sufficient to excuse the
procedural default, a petitioner must make two showings:
First, to establish “cause, ” he must establish
that his counsel in the state [PCR] proceeding was
ineffective under the standards of Strickland.
Strickland, in turn, requires him to establish that
both (a) [PCR] counsel's performance was deficient, and
(b) there was a reasonable probability that, absent the
deficient performance, the result of the [PCR] proceedings
would have been different.
Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir.
2014), overruled on other grounds by McKinney v.
Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc)
(quotation marks and citations omitted); see also Pizzuto
v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015);
Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir.
2016). Determining whether there exists a reasonable
probability of a different outcome “is necessarily
connected to the strength of the argument that trial
counsel's assistance was ineffective.”
Clabourne, 745 F.3d at 377-78. Second, to establish
“prejudice, ” the petitioner must establish that
his “underlying ineffective-assistance-of-trial-counsel
[(“IATC”)] claim is a substantial one, which is
to say that the prisoner must demonstrate that the claim has
some merit.” Id.; see also Martinez,
566 U.S. at 14 (citing Miller-El v. Cockrell, 537
U.S. 322 (2003) (“Miller-El I”)).
claims are governed by the principles set forth in
Strickland v. Washington. 466 U.S. 668, 674 (1984).
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 Cox v.
Ayers, 613 F.3d 883, 893 (9th Cir. 2010). In
Strickland, the Supreme Court held that there are
two components to an IAC claim: “deficient
performance” and “prejudice.” 466 U.S. at
performance” in this context means unreasonable
representation falling below professional norms prevailing at
the time of trial. Id. at 688-89. To satisfy this
prong, a petitioner must overcome a “strong
presumption” that his lawyer “rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at
694. Further, the petitioner “must identify acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.”
Id. The court must then “determine whether, in
light of all the circumstances, the identified acts or
omissions were outside the range of professionally competent
assistance.” Id. In its analysis, the court
“cannot ‘second-guess' counsel's
decisions or view them under the ‘fabled twenty-twenty
vision of hindsight.'” Edwards v.
Lamarque, 475 F.3d 1121, 1127 (9th Cir. 2007) (quoting
LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th Cir.
1998)). “The test has nothing to do with what the best
lawyers would have done. Nor is the test even what most good
lawyers would have done. We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances,
as defense counsel acted at trial.” Coleman v.
Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev'd
on other grounds, 525 U.S. 141 (1998).
his burden of showing Strickland “prejudice,
” the petitioner must affirmatively “show 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.” Strickland, 466 U.S. at 694; see
also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)
(noting that the “prejudice” component
“focuses on the question of whether counsel's
deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair”).
Scope of Remand
remanding this case, the Ninth Circuit concluded, for
purposes of remand, that the claims were
“substantial.” (Doc. 112 at 2). Thus, this Court
is to assume that there is “some merit” to the
contention that both trial counsel performed deficiently and
that this caused prejudice-from the Coleman
cause-and-prejudice standard. See Miller-El I, 537
U.S. at 335-38. In Runningeagle v. Ryan, the Ninth
Circuit set forth the framework for reviewing claims that are
assumed substantial. 825 F.3d at 983. First, the court
determines whether PCR counsel was deficient under the
Strickland standard. Id. at 983- 84.
Second, the court determines whether PCR counsel's
deficiency was prejudicial, which requires the underlying
IATC claim to be prejudicial under Strickland.
Id. at 984- 88 (assuming both PCR and trial
counsel's performances were deficient to analyze whether
PCR counsel's deficiency was prejudicial). If the court
determines either that PCR counsel was not deficient
or-assuming PCR counsel was deficient-PCR counsel's
deficiency was not prejudicial, Petitioner has failed to show
cause for the defaulted claim. Id. at 984, 988.
disagrees with this framework and argues that because the
Ninth Circuit required this Court to assume substantiality,
his only burden on remand is to show that PCR counsel was
ineffective. (Doc. 124 at 7). Petitioner continues that this
does not require analysis of the merits of Petitioner's
underlying IATC claim. (Id. at 5-7). In disagreeing
with the Runningeagle framework, Petitioner relies
on the plurality opinion in Detrich v. Ryan.
See 740 F.3d 1237, 1246 (9th Cir. 2013) (en banc)
(“But if a prisoner were required to show that the
defaulted trial-counsel IAC claims fully satisfied
Strickland in order to satisfy the second
Martinez requirement [of Coleman
prejudice], this would render superfluous the first
Martinez requirement of showing that the underlying
Strickland claims were
‘substantial.'”). The Ninth Circuit has
addressed Petitioner's argument multiple times, holding
that Detrich concludes that
“‘prejudice' for purposes of the ‘cause
and prejudice' analysis requires only a showing that the
trial-level [IAC] claim was ‘substantial' . . .
[but] does not diminish the requirement . . . that petitioner
satisfy the ‘prejudice' prong under
Strickland in establishing ineffective assistance by
[PCR] counsel.” Clabourne, 745 F.3d at 377;
see also Runningeagle, 825 F.3d at 982 n.13;
Pizzuto, 783 F.3d at 1178-80.
the Detrich court stated that “[a] prisoner
need not show actual prejudice resulting from his PCR
counsel's deficient performance, over and above his
required showing that the [IATC] claim be
‘substantial' under the first Martinez
requirement.” 740 F.3d at 1245-46 (emphasis added).
While the Ninth Circuit's remand order stated that the
Court was to assume ‘substantiality, ' it made no
mention that Petitioner had already shown substantiality.
Indeed, neither this Court nor the Ninth Circuit has
determined that Petitioner has made any “required
showing” of substantiality. Thus, while this Court is
assuming substantiality for purposes of
Martinez's substantiality requirement, because
substantiality has not actually been shown, this Court must,
for the first time, consider the prejudice requirement for
PCR counsel's performance that would have been met if
substantiality had actually been shown. Accordingly, the
portion of Detrich cited by Petitioner is
inapplicable to the posture of this case.
the Ninth Circuit has often examined the merits of an
underlying IATC claim when analyzing whether appellate or PCR
counsel's performance was deficient under
Strickland, rather than under the
Strickland prejudice analysis. See, e.g.,
Turner v. Calderon, 281 F.3d 851, 872 (9th Cir.
2002) (“A failure to raise untenable issues on appeal
does not fall below the Strickland standard.”
(citing Featherstone v. Estelle, 948 F.2d 1497, 1507
(9th Cir. 1991))); Pollard v. White, 119 F.3d 1430,
1437 (9th Cir. 1997) (“We conclude that [the
petitioner's] counsel was not deficient for not
arguing” a meritless claim.); Miller v.
Keeney, 882 F.2d 1428, 1435 (9th Cir. 1989)
(“Because [the petitioner] had only a remote chance of
obtaining reversal based upon the admission of evidence of
the hand wiping incident, he cannot satisfy either of the
Strickland prongs: Appellate counsel was not
ineffective for failing to raise the issue and [the
petitioner] suffered no prejudice on account of counsel's
performance.”). Even if Detrich's
framework applied to this remand, it would still require
analysis of the underlying IATC claim's merits to
determine whether PCR counsel was deficient under
Strickland. Thus, under the Ninth Circuit's
remand order, the Court must still examine the merits of the
underlying IATC claim before excusing any procedural default.
See Runningeagle, 825 F.3d at 982 n.13
(“[T]here is no meaningful difference between finding a
claim in default and reviving it but denying it on its
Deficiency and Prejudice of PCR Counsel's
argues that Ms. McAlister's performance was ineffective
because she lacked proper qualifications, was mentally ill
during representation, failed to include Claim 3 in the PCR
petition, and committed other errors in preparing the PCR
petition. (Doc. 124 at 10-19).
first argues that Ms. McAlister performed deficiently because
she did not meet some of the criteria listed in Arizona Rule
of Criminal Procedure 6.8 when the Arizona Supreme Court
first appointed her as lead counsel in an unrelated 1998
capital PCR proceeding. (Doc. 124 at 10-12). Thus, Petitioner
continues, any decision made by Ms. McAlister during
Petitioner's PCR proceedings was inherently unreasonable.
(Id.). As a result, Petitioner appears to argue that
any decision made by Ms. McAlister during Petitioner's
PCR proceeding was inherently unreasonable. (See Id.
at 15). Respondent rejoins that this argument is irrelevant
to Ms. McAlister's performance in Petitioner's PCR
proceedings. (Doc. 125 at 16).
Rule of Criminal Procedure 6.8 sets forth eligibility
criteria for the appointment of counsel in a capital case. In
1998, Rule 6.8 required PCR counsel to have: (1)
“practiced in the area of state criminal litigation for
three years immediately preceding the appointment”; (2)
“demonstrated the necessary proficiency and commitment
which exemplify the quality of representation appropriate to
capital cases”; and (3) “attended and
successfully completed, within one year of appointment, at
least twelve hours of relevant training or educational
programs in the area of capital defense, ” among other
requirements. See Ariz. R. Crim. P. 6.8(a), (c)
(1998). Rule 6.8 also included a bypass from these formal
requirements “providing that the attorney's
experience, stature and record enable the [Arizona Supreme
Court] to conclude that the attorney's ability
significantly exceeds the standards set forth in this
rule.” Id. 6.8(d).
1998, the Indigent Defense Standards Committee, which
provided recommendations to the Arizona Supreme Court as to
counsel eligibility with Rule 6.8, declined to recommend Ms.
McAlister because she failed to meet the requirements of Rule
6.8(c). (Docs. 124 at 12; 124-1 at 11-15). Nonetheless, the
state court appointed Ms. McAlister as lead counsel in a
capital PCR proceeding, (Doc. 124 at 12), presumably
recognizing that Ms. McAlister met the requirements set ...