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Djerf v. Ryan

United States District Court, D. Arizona

April 4, 2017

Richard Kenneth Djerf, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          James A. Teilbrog, Senior United States District Judge

         This 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).

         The 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.).

         Petitioner 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.[1] (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. 127).

         I. PROCEDURAL BACKGROUND[2]

         In 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.

         At the 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, [3] 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.

         The 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.

         Petitioner 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.

         Petitioner 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).

         In 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.).

         Petitioner 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.

         On 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).

         While 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).

         II. CLAIM 3

         In 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).

         A. Exhaustion of State Remedies Legal Standard

         A state 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).

         However, 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.

         In 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)).

         To 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”)).

         IAC 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 687.

         “Deficient 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).

         To meet 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”).

         B. Scope of Remand

         In 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.

         Petitioner 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.

         Additionally, 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.

         Finally, 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 merits.”).

         C. Analysis

         1. Deficiency and Prejudice of PCR Counsel's Performance

         Petitioner 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).

         a. State Qualifications

         Petitioner 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).

         Arizona 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).

         In 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 ...


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