United States District Court, D. Arizona
J. Markovich, United States Magistrate Judge
Juan Jesus Lebario filed an amended pro se petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
challenging his convictions for attempted first degree
murder, aggravated assault with a deadly weapon, drive-by
shooting, theft of a means of transportation, feeling from
law enforcement, and criminal damage. (Doc. 11). Petitioner
raises six grounds for relief: (1) due process and 14th
amendment violations at trial where two witnesses made
in-court identifications of Petitioner that were allegedly
based on an unduly suggestive lineup; (2) 5th, 6th, and 14th
amendment violations where the trial court precluded evidence
that an officer took a photo of Petitioner that may have been
sent to another officer before he identified Petitioner at
the lineup; (3) 5th and 14th amendment violations where the
trial court improperly considered Petitioner's use of a
weapon as an aggravating factor at sentencing; (4)
ineffective assistance of counsel (“IAC”) based
on trial counsel's failure to file a motion for a new
trial when exculpatory DNA evidence was found after trial;
(5) violation of Petitioner's 5th amendment due process
right to a fair trial because the DNA evidence constitutes
newly discovered evidence regardless of the IAC issue; and
(6) violation of Petitioner's 5th and 14th amendment due
process rights where the trial court failed to hold an
evidentiary hearing during the Rule 32 proceedings.
Respondents filed an Answer contending that Petitioner failed
to properly exhaust some of his claims and that they are
procedurally barred without excuse, and that Petitioner's
remaining claims that are properly exhausted are either
without merit or not cognizable in federal habeas
proceedings. (Doc. 17).
Court finds that Petitioner properly exhausted his claims in
Grounds One and Two of the petition, but failed to show that
the state court's decision was contrary to clearly
established federal law, an unreasonable application of that
law, or based on an unreasonable determination of the facts.
The Court also finds that Petitioner properly exhausted his
claims in Ground Four, but failed to show that the state
court's decision was based on an objectively unreasonable
application of Strickland v. Washington. As to
Grounds Three, Five, and Six, the Court finds that these
claims are unexhausted and procedurally defaulted and thus
not properly before this Court for review. The Court further
finds that Petitioner does not demonstrate cause and
prejudice or a fundamental miscarriage of justice to excuse
the procedural default of his claims. Accordingly, the
petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Trial, Sentencing, and Appeal
October 1, 2010, a Pima County Superior Court jury found
Petitioner guilty of attempted first degree murder,
aggravated assault with a deadly weapon, drive-by shooting,
theft of means of transportation, fleeing from law
enforcement vehicle, and criminal damage. (Doc. 17 Ex. B).
Petitioner was sentenced to a combination of concurrent and
consecutive terms totaling 50 years in prison. (Doc. 17 Ex.
Arizona COA summarized the facts of the case as follows:
Lebario stole a truck from M.B. at gunpoint. A witness, M.M.,
followed him, but Lebario soon stopped, got out of the truck,
and pointed his gun at her, at which point she drove away.
The following day, an Arizona Department of Public Safety
(“DPS”) officer, K.L., saw the truck on the
highway, verified it was stolen, and pursued it. K.L.
attempted to stop the truck, but the driver, whom he later
identified as Lebario, refused to stop. K.L. then pulled his
patrol car up next to the truck and Lebario fired shots at
him. Law enforcement officers continued to pursue the
vehicle, and ultimately stopped and arrested Lebario.
(Doc. 17 Ex. G at 2).
his conviction, Petitioner sought review in the Arizona COA.
Appointed counsel filed a brief presenting three issues for
review: (1) the trial court should have suppressed the two
witnesses' in-court identifications because they were
tainted by an unduly suggestive lineup procedure; (2) the
trial court erred by precluding exculpatory evidence that a
DPS officer took a cell phone photo of Petitioner which he
may have sent to other officers before Lankow identified
Petitioner as the person who shot at his patrol car; and (3)
the trial court's use of the weapon involved in the
attempted murder charge to aggravate Petitioner's
sentence was improper under State v. Harvey and
A.R.S. § 13-701(D)(2). (Doc. 17 Ex. F). On November 8,
2011, the COA found no reversible error and affirmed
Petitioner's conviction and sentence. (Doc. 17 Ex. G).
filed a Petition for Review with the Arizona Supreme Court
and presented three issues: (1) whether the witnesses'
in-court identifications should have been suppressed because
they were tainted by an unduly suggestive lineup; (2) whether
Petitioner should have been allowed to present exculpatory
evidence that an officer took a photo that might have been
sent to Lankow; and (3) whether the COA should have remanded
the case for resentencing rather than finding harmless error.
(Doc. 17 Ex. H). The Arizona Supreme Court denied the
Petition for Review. (Doc. 17 Ex. I).
Petition for Post-Conviction Relief
November 2, 2010, Petitioner initiated proceedings in Pima
County Superior Court for post-conviction relief
(“PCR”). (Doc. 17 Ex. K). The trial court
appointed counsel to represent Petitioner, and counsel filed
the Rule 32 petition on October 23, 2012. (Doc. 17 Exs. L, M,
& O). Petitioner raised three issues: (1) IAC based on
trial counsel's failure to file a motion for new trial
after exculpatory DNA evidence was found; (2) the DNA
evidence constitutes newly discovered evidence regardless of
the IAC issue; and (3) Petitioner is entitled to an
evidentiary hearing because he has stated a colorable claim
for relief for both IAC and newly discovered evidence. (Doc.
17 Ex. O). The trial court denied PCR on March 28, 2013.
(Doc. 17 Ex. Q).
filed a petition for review with the Arizona COA and alleged
abuse of discretion by the trial court for: (1) denying PCR
based on the newly discovered DNA evidence; (2) denying PCR
based on IAC; and (3) dismissing the Rule 32 Petition without
holding an evidentiary hearing. (Doc. 17 Ex. R). On November
13, 2013 the COA issued its decision granting review and
denying relief. (Doc. 17 Ex. S). Petitioner did not file a
petition for review with the Arizona Supreme Court.
filed his first Petition for Writ of Habeas Corpus (PWHC) in
this Court on October 23, 2014, asserting three grounds for
relief. (Doc. 1). The Court dismissed the Petition with leave
to amend to identify the constitutional right allegedly
violated in each ground. (Doc. 6). Petitioner subsequently
filed his amended PWHC on April 20, 2015 and alleges six
grounds for relief. (See pgs 1-2 above). Petitioner
requests an evidentiary hearing and states that the ultimate
issue is whether he received a just sentence.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits the federal court's power to
grant a petition for a writ of habeas corpus on behalf of a
state prisoner. First, the federal court may only consider
petitions alleging that a person is in state custody
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Sections 2254(b) and (c) provide that the federal courts may
not grant habeas corpus relief, with some exceptions, unless
the petitioner exhausted state remedies. Additionally, if the
petition includes a claim that was adjudicated on the merits
in state court proceedings, federal court review is limited
by section 2254(d).
prisoner must exhaust his state remedies before petitioning
for a writ of habeas corpus in federal court. 28 U.S.C.
§ 2254(b)(1) & (c); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To exhaust state
remedies, a petitioner must afford the state courts the
opportunity to rule upon the merits of his federal claims by
fairly presenting them to the state's highest court in a
procedurally appropriate manner. Baldwin v. Reese,
541 U.S. 27, 29 (2004) (“[t]o provide the State with
the necessary opportunity, the prisoner must fairly present
her claim in each appropriate state court . . . thereby
alerting the court to the federal nature of the
claim.”). In Arizona, unless a prisoner has been
sentenced to death, the highest court requirement is
satisfied if the petitioner has presented his federal claim
to the Arizona COA, either through the direct appeal process
or post-conviction proceedings. Crowell v. Knowles,
483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).
is fairly presented if the petitioner describes both the
operative facts and the federal legal theory upon which the
claim is based. Kelly v. Small, 315 F.3d 1063, 1066
(9th Cir. 2003), overruled on other grounds by Robbins v.
Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner
must have “characterized the claims he raised in state
proceedings specifically as federal claims.”
Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000)
(emphasis in original), opinion amended and
superseded, 247 F.3d 904 (9th Cir. 2001). “If a
petitioner fails to alert the state court to the fact that he
is raising a federal constitutional claim, his federal claim
is unexhausted regardless of its similarity to the issues
raised in state court.” Johnson v. Zenon, 88
F.3d 828, 830 (9th Cir. 1996). “Moreover, general
appeals to broad constitutional principles, such as due
process, equal protection, and the right to a fair trial, are
insufficient to establish exhaustion.” Hivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
“[a] habeas petitioner who [fails to properly exhaust]
his federal claims in state court meets the technical
requirements for exhaustion” if there are no state
remedies still available to the petitioner. Coleman v.
Thompson, 501 U.S. 722, 732 (1991). “This is often
referred to as ‘technical' exhaustion because
although the claim was not actually exhausted in state court,
the petitioner no longer has an available state
remedy.” Thomas v. Schriro, 2009 WL 775417, *4
(D. Ariz. March 23, 2009). “If no state remedies are
currently available, a claim is technically exhausted,
” but, as discussed below, the claim is procedurally
defaulted and is only subject to federal habeas review in a
narrow set of circumstances. Garcia v. Ryan, 2013 WL
4714370, *8 (D. Ariz. Aug. 29, 2013).
petitioner fails to fairly present his claim to the state
courts in a procedurally appropriate manner, the claim is
procedurally defaulted and generally barred from federal
habeas review. Ylst v. Nunnemaker, 501 U.S. 797,
802-05 (1991). There are two categories of procedural
default. First, a claim may be procedurally defaulted in
federal court if it was actually raised in state court but
found by that court to be defaulted on state procedural
grounds. Coleman, 501 U.S. at 729-30. Second, the
claim may be procedurally defaulted if the petitioner failed
to present the claim in a necessary state court 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.” Id. at 735 n. 1;
O'Sullivan, 526 U.S. at 848 (when time for
filing state court petition has expired, petitioner's
failure to timely present claims to state court results in a
procedural default of those claims); Smith v.
Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to
exhaust claims in state court resulted in procedural default
of claims for federal habeas purposes when state's rules
for filing petition for post-conviction relief barred
petitioner from returning to state court to exhaust his
petitioner has procedurally defaulted his claims, federal
habeas review occurs only in limited circumstances. “A
state prisoner may overcome the prohibition on reviewing
procedurally defaulted claims if he can show cause to excuse
his failure to comply with the state procedural rule and
actual prejudice resulting from the alleged constitutional
violation.” Davila v. Davis, 137 S.Ct. 2058,
2064 (2017) (internal quotations and citation omitted);
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012)
(“A prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice from a
violation of federal law.”). Cause requires a showing
“that some objective factor external to the defense
impeded counsel's efforts to comply with the State's
procedural rule . . . [such as] a showing that the factual or
legal basis for a claim was not reasonably available to
counsel, . . . or that some interference by officials made
compliance impracticable.” Murray v. Carrier,
477 U.S. 478, 488 (1986) (internal quotations and citations
omitted). Prejudice requires “showing, not merely that
the errors at his trial created a possibility of prejudice,
but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
The Court need not examine the existence of prejudice if the
petitioner fails to establish cause. Engle v. Isaac,
456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945
F.2d 1119, 1123 n. 10 (9th Cir. 1991). Additionally, a habeas
petitioner “may also qualify for relief from his
procedural default if he can show that the procedural default
would result in a ‘fundamental miscarriage of
justice.'” Cook v. Schriro, 538 F.3d 1000,
1028 (9th Cir. 2008) (quoting Schlup v. Delo, 513
U.S. 298, 321 (1995)). This exception to the procedural
default rule is limited to habeas petitioners who can
establish that “a constitutional violation has probably
resulted in the conviction of one who is actually
innocent.” Schlup, 513 U.S. at 327; see
also Murray, 477 U.S. at 496; Cook, 538 F.3d at
Adjudication on the Merits and § 2254(d)
Ninth Circuit has held that “a state has
‘adjudicated' a petitioner's constitutional
claim ‘on the merits' for purposes of §
2254(d) when it has decided the petitioner's right to
post-conviction relief on the basis of the substance of the
constitutional claim advanced, rather than denying the claim
on the basis of a procedural or other rule precluding state
court review of the merits.” Lambert v.
Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
habeas petition includes a claim that was properly exhausted,
has not been procedurally defaulted, and was
“adjudicated on the merits in State court proceedings,
” federal court review is limited by § 2254(d).
Under § 2254(d)(1), a federal court cannot grant habeas
relief unless the petitioner shows: (1) that the state
court's decision was contrary to federal law as clearly
established in the holdings of the United States Supreme
Court at the time of the state court decision, Greene v.
Fisher, 565 U.S. 34, 38 (2011); (2) that it
“involved an unreasonable application of” such
law, § 2254(d)(1); or (3) that it “was based on an
unreasonable determination of the facts” in light of
the record before the state court, 28 U.S.C. §
2254(d)(2); Harrington v. Richter, 562 U.S. 86
(2011). This standard is “difficult to meet.”
Richter, 562 U.S. at 102. It is also a “highly
deferential standard for evaluating state court rulings . . .
which demands that state court decisions be given the benefit
of the doubt.” Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (internal quotations and citation omitted).
Ground One, Petitioner contends that his 14th amendment due
process rights were violated when two witnesses were allowed
to make in-court identifications of Petitioner after viewing
an unduly suggestive lineup. Petitioner specifically alleges
that prior to viewing the lineup, the witnesses watched news
programs about the crimes and were told that Petitioner had
been arrested. Petitioner also alleges that the lineup
procedure was flawed because Petitioner was the only person
wearing prison orange, Petitioner's photo was placed in
the middle of the top row, the detective prepared the lineup
himself, the lineup was not tested on mock witnesses, and the
lineup was not recorded.
concede that Petitioner has fully exhausted his claims in
Ground One but contend that the claim has no merit.
Respondents first note that the detective did not tell either
witness that a suspect had been arrested until after they
made their identifications, and further that neither witness
saw any news reports about the crimes or Petitioner until
after the lineup. Respondents next note that the COA found
that Petitioner's orange t-shirt did not look like a
prison uniform, and that both witnesses testified that they
made their identifications based on Petitioner's face,
not his clothing.
Respondents note that the state courts applied an express
procedural bar and declined to address the merits of
Petitioner's arguments that the detective failed to
follow the proper procedures and that he erred by placing
Petitioner's photo in the center row. i. Law “When
a witness identifies the defendant in a police-organized
photo lineup . . . the identification should be suppressed
only where ‘the photographic identification procedure
was so [unnecessarily] suggestive as to give rise to a very
substantial likelihood of irreparable
misidentification.'” Perry v. New
Hampshire, 565 U.S. 228, 238 (2012) (quoting Simmons
v. United States, 390 U.S. 377, 384-85 (1968)).
“[D]ue process concerns arise only when law enforcement
officers use an identification procedure that is both
suggestive and unnecessary. Even when the police use such a
procedure, . . . suppression of the resulting identification
is not the inevitable consequence.” Id. at
238- 39 (citations omitted). “[T]he Due Process Clause
requires courts to assess, on a case-by-case basis, whether
improper police conduct created a substantial likelihood of
misidentification.” Id. at 239 (internal
quotations and citation omitted). “Where the indicators
of a witness' ability to make an accurate identification
are outweighed by the corrupting effect of law enforcement
suggestion, the identification should be suppressed.
Otherwise, the evidence (if admissible in all other respects)
should be submitted to the jury.” Id. at 239
(internal quotations and citation omitted).
is the linchpin in determining the admissibility of
identification testimony . . . .” Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). However,
“[t]he due process check for reliability,
Brathwaite made plain, comes into play only after
the defendant establishes improper police conduct.”
Perry, 565 U.S. at 241. The due process check does
not apply “to suspicion of eyewitness testimony