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Ring v. Ryan

United States District Court, D. Arizona

January 22, 2018

Timothy Stuart Ring, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT COURT:

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge.

         Petitioner Timothy Stuart Ring, who is confined in the Arizona State Prison Complex, Buckley Unit, in Buckeye, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 13), and Petitioner has filed a Reply (Doc. 14).

         BACKGROUND

         Petitioner was convicted following jury trial in Maricopa County Superior Court, case #CR1995-001754, of first degree felony murder, conspiracy to commit armed robbery, armed robbery, first degree burglary, and theft and was sentenced to death and lesser sentences. See State v. Ring, 25 P.3d 1139 (Ariz. 2001). Petitioner's conviction and sentences were affirmed by the Arizona Supreme Court. See id. The United States Supreme Court granted certiorari and reversed and remanded regarding Petitioner's death sentence. See Ring v. Arizona, 536 U.S. 584 (2002). On September 5, 2003, the Arizona Supreme Court held that a finding that Petitioner committed the murder for pecuniary gain was not harmless error and remanded for resentencing. See State v. Ring, 76 P.3d 421 (Ariz. 2003). In July 2007, upon remand, the trial court resentenced Petitioner to a natural life term of imprisonment on the murder conviction pursuant to an agreement he entered with the State.

         The Arizona Supreme Court described the facts of this case as follows:

¶2 At approximately 2:00 p.m. on November 28, 1994, a Wells Fargo armored van servicing Dillard's department store at Arrowhead Mall was reported missing by Dave Moss, the van's “hopper.” At approximately 6:30 p.m. that same day, a Maricopa County Sheriff's deputy discovered the missing van in the parking lot of a Sun City church. All of the van's doors were locked, the engine was running, and a body was slumped over on the passenger side. The body was that of the van's driver, John Magoch, who had been killed by a gunshot wound to the head.
¶3 Wells Fargo determined that its losses from the robbery totaled $833, 798.12, of which $562, 877.91 was in cash. Although no eyewitnesses to the crime came forward, one person riding his bicycle in Sun City on the afternoon of the robbery claimed to have seen a white van, followed by a red pick-up truck, run a stop sign. This witness stated that one man was driving the red truck while two people were in the van. Another witness also saw a white van followed by a red pick-up truck. Although she remembered one man driving the van, she testified that either two or three men were in the red truck.
¶4 Through information provided by an informant, the Glendale Police Department contacted Judy Espinoza, who believed that her boyfriend James Greenham and a friend of Greenham's named “Tim” may have been involved in the robbery. “Tim” later turned out to be Defendant-Timothy Ring. Glendale Police interviewed Espinoza on December 30, 1994. Espinoza stated that when she heard about the robbery on the radio, she remembered that a week before Greenham had asked her what she would do “if he hit an Armored car.” Espinoza also remembered that, although Greenham had been staying with her, he was not at home on the night of the robbery and during that week he was “very stressed out.” In addition, shortly after the robbery, Greenham handed Espinoza a bag of rolled coins totaling approximately $250 and gave Espinoza's mother $800 in cash to pay bills. Finally, Espinoza informed the police that Greenham's friend Tim owned a red truck. About a week before the interview with police, Greenham had stopped dating Espinoza and had moved out of her home.
¶5 While conducting surveillance of Greenham, the police noticed that he appeared to be riding a new motorcycle. Random phone calls to motorcycle dealerships revealed that, in December 1994, Greenham and Defendant made large cash purchases at Metro Motor Sports. Specifically, Defendant bought two ATVs and a motorcycle from the dealership for $7, 500 and $7, 300, respectively. Over the next several weeks, Defendant and Greenham both made many more expensive purchases, all of them cash transactions. Wiretaps on certain telephones belonging to Defendant and Greenham began on January 9, 1995. On January 21, 1995, Defendant called William Ferguson and discussed Greenham's purchase of a new truck, the trouble this caused with Greenham's ex-wife, and what impact that trouble might have on their plans “up north.” In that call, Defendant threatened to “cut off” Greenham's supply, as Defendant held “both his and mine.” The two also talked about disappearing for two years after “up north happens, ” then reuniting in Las Vegas. Four days later, Ferguson bought a new motorcycle for $8, 700 cash, paying in fifty and one-hundred dollar bills.
¶6 On January 26, 1995, Greenham called Defendant's pager and entered the following code: 20*2000*04. He followed that call with another code: 50*5000*04. In conversations between Defendant and Ferguson, Defendant had referred to Greenham as “zero four.” Later that day, Defendant asked Greenham, “The two pages you sent ... those are your requests, is that right?” To which Greenham responded, “Yeah.”
¶7 As part of the investigation of Defendant, arrangements were made with Waste Management Company to perform a “trash cover, ” enabling investigators to sort through and survey Defendant's waste. During this process, police acquired two notecards, written by Defendant, with addresses of businesses serviced by Loomis Armored Cars, as well as numbers corresponding to Loomis trucks. Defendant was employed by Loomis in 1988-89 and, at trial, claimed that the notecards pertained to his employment at that time.
¶8 The police then attempted to generate discussion between the conspirators about the robbery. On January 31, 1995, the police issued a news release that was aired on local television stations. Defendant called Greenham at approximately 10:30 that evening and left a message on Greenham's answering machine to “remind me to talk to you tomorrow and tell you what was on the news tonight. Very important, and also fairly good.” A few days later, Detective Tom Clayton from the Glendale Police Department left his business card on the door of Greenham's residence, requesting that Greenham call and “refer to lead 176.” In response, Greenham made an emotional, panicked telephone call to Defendant. Greenham also apparently called his ex-wife, who was so concerned about his well-being that she asked Phoenix Police to visit Greenham's apartment to check on him. Coincidentally, Defendant stopped by Greenham's apartment at the same time. Defendant later discussed this incident with Ferguson, telling him “I don't know what to think of it. Uhm, his house is clean. Mine, on the other hand, contains a very large bag.” Later that same day, Defendant also said, “it doesn't really make a whole lot of sense, because given the information that they do have, both public and what I've been able to ascertain privately ... if they were gonna come after somebody, it would be me.” Ferguson ended the call by saying that he would “keep a suitcase packed.”
¶9 On February 14, 1995, the police again attempted to generate conversation by airing a “Silent Witness” re-enactment on the local news that contained several deliberately incorrect details about the robbery and murder. Defendant called Ferguson at 10:51 p.m. to talk about the broadcast. Ferguson claimed to have “laughed my ass off” and said he was “not real worried at all now.” Defendant stated that “there's only one thing that slightly concerns me, ” and asked, “What if push comes to shove down the months and they ask for hair and fibers, so forth, and it happens to somehow....” Later in the conversation, Defendant said, “there was a couple of in continuities (sic) to their story.... They showed a suppressed revolver of all things.”
¶10 Two days later, on February 16, 1995, a search warrant was served on Defendant's residence. Police found a homemade sound suppressor attached to a Ruger 1022 rifle barrel behind the hot water heater in a corner of Defendant's garage. Also in the garage, inside a storage cabinet, police discovered a green duffel bag with Defendant's name on it. The bag contained bundles of United States currency totaling $271, 681. Defendant also had $1, 040 in a headboard in the master bedroom. In a notebook found in the same headboard, police discovered a post-it note that had the number “575, 995” on it. Below the number was the word “splits, ” with the three letters “F, ” “Y, ” and “T, ” and numbers below the letters totaling 575, 995, which is remarkably similar to the total cash amount taken in the robbery. An expert testified that this note was written by Defendant. Greenham's friends often called him “Yoda”; thus, argued the state, the “Y” represented Greenham, the “F” was for Ferguson, and the “T” stood for Defendant. A search warrant served on Ferguson's residence also turned up $62, 601. Approximately $200 was found at Greenham's apartment.
¶11 In his own defense, Defendant claimed to have made more than $100, 000 as a confidential informant for the FBI. However, an agent for that agency testified that Defendant was only paid a total of $458. In addition, Defendant testified that his income included money made as a bounty hunter and gunsmith. However, Defendant only made $3, 500 working for Don's Bail Bonds in 1993 and while working one month for A-1 Bail Bonds in 1994 was paid $1, 600.

Ring, 25 P.3d at 1142-44, ¶¶ 2-11 (Ariz. 2001) (footnotes and internal citations omitted).

         Petitioner filed a notice of post-conviction relief (PCR) in September 2007. (Exh. E.) Petitioner's PCR petition raised two theories for relief, but alleged multiple claims under each theory: ineffective assistance of counsel and prosecutorial misconduct. (Exhs. F, I.) The trial court dismissed some of the claims finding them not colorable. (Exh. F.) The court ordered an evidentiary hearing on Petitioner's remaining claims. (Exh. F.) After an evidentiary hearing, the court denied the remaining claims, and dismissed the petition. (Exh. G.) Petitioner filed a petition for review of the dismissal of his PCR petition with the Arizona Court of Appeals. (Exh. B, K.) The appellate court granted review, but denied relief. (Exh. B.) The Arizona Supreme Court denied Petitioner's petition for review. (Exh. H.)

         Petitioner has filed a 471-page habeas petition with 435 pages of accompanying exhibits. Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an additional Respondent. Petitioner raises seven grounds for relief. In Ground One, Petitioner alleges violation of his Fourth, Fifth, and Fourteenth Amendment rights, and federal statutory law, in connection with wiretap orders. (Doc. 1 at 6.) In Ground Two, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when he was denied the right to present a third party defense. (Doc. 1-1 at 1.) In Ground Three, he alleges that his Fifth and Fourteenth Amendment rights were violated based upon insufficient evidence. (Doc. 1-2 at 1.) In Ground Four, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated where the post-conviction review court precluded newly-discovered ballistics evidence. (Doc. 1-3 at 1.) In Ground Five, he alleges prosecutorial misconduct in violation of his Fifth and Fourteenth Amendment rights. (Doc. 1-5 at 1.). In Ground Six, Petitioner alleges that he was denied the effective assistance of counsel in violation of his Sixth Amendment rights. (Doc. 1-10 at 1.) In Ground Seven, Petitioner alleges that he was denied the effective assistance of counsel during post-conviction proceedings in violation of his Sixth and Fourteenth Amendment rights. (Doc. 1-12 at 1.)

         In their Answer, Respondents argue: (1) Grounds One and Three are procedurally defaulted; (2) Grounds Two, Four, and Seven fail to state a cognizable claim; and (3) Petitioner's remaining claims fail on the merits.

         DISCUSSION

         A. Standards of Review 1. Exhaustion and Procedural Default

         A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9thCir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).

         Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“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.”).

         A “general appeal to a constitutional guarantee, ” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.

         Even when a claim's federal basis is “self-evident, ” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim” to discover implicit federal claim).

         Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:

In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.

Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.

         Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent”[1] and “adequate”[2] - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).

         Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).

         A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim, ' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris, 489 U.S. at 263 n.9).

         Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9thCir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).

         Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable “cause” for a petitioner's failure to fairly present his claim. Regarding the “miscarriage of justice, ” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).

         2. Merits

         Pursuant to the AEDPA[3], a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 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) (per curiam) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson, 360 F.3d at 1055.

         A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).

         B. Grounds One and Three

         In Ground One, Petitioner alleges a violation of his Fourth, Fifth, and Fourteenth Amendment rights, as well as, federal statutory law, in connection with wiretap orders. (Doc. 1 at 6.) Specifically, Petitioner contends that the “State obtained multiple wiretap orders through the use of police and FBI perjury, before any other traditional investigative techniques were attempted, in violation of U.S. Title III (Wiretap Act), federal law, and due process under the 5th and 14th Amendments, as well as the 4th Amendment of the U.S. Constitution.”

         In Ground Three, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated based upon insufficient evidence. (Doc. 1-2 at 1.) Petitioner claims that his “convictions and death sentence were upheld through accomplice liability despite a fundamental insufficiency of evidence of [Petitioner] or either of [Petitioner's] codefendants being placed at the crime scene, in violation of due process under the 5th and 14thAmendments of the U.S. Constitution, and established federal law.”

         Petitioner failed to fairly present the claims alleged in Grounds One and Three to the state courts. Indeed, Petitioner did not allege, and the state courts did not construe or consider, any allegations regarding violations of Petitioner's Fourth, Fifth, and Fourteenth Amendment rights, as well as, federal statutory law, in connection with wiretap orders, or allegations regarding violations of Petitioner's Fifth and Fourteenth Amendment rights due to insufficient evidence. (Exhs. I (PCR Petition), F (Minute Entry), G (Minute Entry), K (Petition for Review), B (Memorandum Decision).); see State v. Ring, 25 P.3d 1139 (Ariz. 2001). Failure to fairly present Grounds One and Three has resulted in procedural default because Petitioner is now barred from returning to state courts. See Ariz.R.Crim.P. 32.2(a), 32.4(a).

         Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner has not established that any exception to procedural default applies. And, Petitioner's status as an inmate, lack of legal knowledge and assistance, and limited legal resources do not establish cause to excuse the procedural bar. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.

         Petitioner has also not established a fundamental miscarriage of justice. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is “demanding.” House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial.” Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner “must demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a ‘miscarriage of justice.'” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327. Petitioner has failed to establish, let alone allege, a sufficient showing of actual innocence to establish a miscarriage of justice. Therefore, Petitioner cannot excuse his procedural defaults on this basis.

         C. Grounds Two, Four, and Seven

         In Ground Two, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when he “was denied the right to present a third party defense.” (Doc. 1-1 at 1.) Although the specifics of Petitioner's claim are difficult to pin down, Petitioner appears to argue that the trial court erred by prohibiting the introduction of third-party culpability evidence.

         In Ground Four, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated where the post-conviction review court “improperly precluded newly discovered ballistics evidence that undermines [Petitioner's] felony murder conviction.” (Doc. 1-3 at 1.)

         In Ground Seven, Petitioner alleges that he was denied the effective assistance of counsel during post-conviction proceedings in violation of his Sixth and Fourteenth Amendment rights. (Doc. 1-12 at 1.)

         As to Grounds Two and Four, the Court can grant habeas relief “only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treatises of the United States.” 28 U.S.C. § 2254(a). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law grounds.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (“[M]ere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas.”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). And, a petitioner may not “transform a state law issue into a federal one merely by asserting a violation of due process.” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)); see Engle v. Isaac, 456 U.S. 107, 119-21 (1982) (“While they attempt to cast their first claim in constitutional terms, we believe that this claim does no more than suggest that the instructions at respondents' trials may have violated state law.”).

         Petitioner does not present a cognizable federal claim in Ground Two. Although Petitioner attempts to transform his attack on a state court evidentiary ruling as a constitutional denial of his right to present a meaningful defense, he cannot transform this state law issue into a federal one merely by asserting a constitutional violation. See, e.g., Poland, 169 F.3d at 584. This alleged violation of state law is not a claim that is cognizable on federal habeas review.

         Similarly, Petitioner also fails to assert a cognizable federal claim in Ground Four. Again, whether a state evidentiary ruling is correct or not does not constitute a claim cognizable on federal habeas review. Further, to the extent Petitioner is challenging the state post-conviction court's ruling on alleged “newly discovered ballistics evidence, ” that claim is also not cognizable. Unless the collateral review of a petitioner's conviction violated some independent constitutional right, an alleged error in the state collateral proceeding cannot form the basis for federal habeas corpus relief. See, e.g., Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996). See also Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) ...


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