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Korelc v. Ryan

United States District Court, D. Arizona

March 7, 2018

Randall Mark Korelc, Petitioner,
v.
Charles Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT:

         Petitioner Randall Mark Korelc, who is confined in the Corrections Corporation of America's Red Rock Correctional Center, 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. 7), and Petitioner has filed a Reply (Doc. 10).

         BACKGROUND

         On March 11, 2011, Petitioner was convicted in Maricopa County Superior Court, case #2007-172851-001, of second-degree murder. He was sentenced to an 18-year term of imprisonment. The Arizona Court of Appeals described the facts of this case as follows:

¶2 In November 2007, Korelc was living in an apartment with R.G., his girlfriend. Late in the afternoon on November 9, 2007, Korelc drove to the home of his son, C.K., and told him R.G. had “shot herself” and “was dead.” Korelc told C.K. she had picked up his gun, pointed it at him, then “turned the gun on herself.” When he arrived at C.K.'s home, Korelc had in his hand his pistol, which police later confirmed through ballistics testing fired the shot that killed R.G. Korelc told C.K. he had taken the gun out of R.G.'s hand and left the apartment. C.K. then asked his brother to call the police while he drove Korelc to the apartment.
¶3 A police sergeant who arrived at the apartment testified it was “orderly” and he did not see “any signs of a struggle.” When police entered the apartment, they found R.G. dead, sitting on a couch in the living room, with one leg up on the couch and one foot on the floor. R.G. had a single gunshot wound to the right side of her jaw, which the medical examiner testified “would kill somebody instantly.” He further testified the crime scene photos “led [him] to believe ... [R.G.] did not move [after she was shot], which goes along with having been shot through the cervical spine and resulting in paralysis.” And, the medical examiner and a detective both testified the position of the body, the location and type of wound, and the lack of gunshot residue on the body all negated the possibility of suicide.
¶4 In speaking with police after returning to the apartment, Korelc initially told them R.G. shot herself. When detectives interviewed Korelc later that evening, however, he said he had taken the gun from R.G. and admitted he was holding it four to five feet away from her when it went off.

(Doc. 7, Exh. EE at 2-3.)

         On direct appeal, Petitioner raised the following claims: (1) the trial court erred when it allowed the State to introduce other act evidence; (2) the trial court abused its discretion when it precluded Petitioner from calling the murder victim's physicians to testify at trial; and (3) the trial court abused its discretion when it found that his statements to police were voluntary. (Doc. 7, Exh. BB.) The Arizona Court of Appeals rejected Petitioner's claims and affirmed his convictions, (Doc. 7, Exh. EE), and the Arizona Supreme Court denied review, (Doc. 7, Exh. FF).

         Petitioner filed a timely notice of post-conviction relief and was appointed counsel. (Doc. 7, Exhs. GG, HH.) Petitioner's counsel, subsequently, filed a “Notice of Completion of Post-Conviction Review by Counsel, ” indicating she could not find any claims to raise. Counsel also requested additional time for Petitioner to file a pro se PCR petition. (Doc. 7, Exh. II.) Petitioner was granted three extensions of time, and he ultimately filed his PCR petition on September 24, 2013. (Doc. 7, Exhs. JJ-MM.) The trial court struck the petition because it was oversized and Petitioner failed to certify that he had raised all grounds known to him. (Doc. 7, Exh. NN.) Thereafter, Petitioner filed a revised PCR petition, which was accepted by the court. (Doc. 7, Exhs. OO, PP.) After briefing was completed, the trial court denied the PCR petition. (Doc. 7, Exhs. SS.) The court also denied a subsequent request for reconsideration. (Doc. 7, Exhs. TT, UU, WW.) The Arizona Court of Appeals accepted review of Petitioner's delayed petition for review, but denied relief. (Doc. 7, Exhs. VV, XX, YY.)

         In his habeas petition, Petitioner raises four grounds for relief. In Ground One, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the trial court admitted evidence of prior bad acts to demonstrate that Petitioner had a propensity for violence. (Doc. 1 at 6; Doc. 4.) In Ground Two, Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the trial court precluded the testimony of two expert witnesses that Petitioner wished to call. (Doc. 1 at 7; Doc. 4.) In Ground Three, he alleges that his Fifth and Sixth Amendment rights were violated when the trial court denied his motion to suppress evidence of involuntary statements he made to law enforcement officers. (Doc. 1 at 8; Doc. 4.) In Ground Four, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when he received ineffective assistance of counsel. (Doc. 1 at 9; Doc. 4.) According to Petitioner, his counsel's performance was deficient because counsel failed to call certain witnesses and failed to request certain jury instructions. (Doc. 1 at 9; Doc. 4.)

         In their Answer, Respondents argue that all of the claims alleged in Petitioner's habeas petition fail on the merits. Respondents additionally contend that Petitioner's Miranda claim alleged in Ground Three is procedurally defaulted.

         DISCUSSION

         A. Standards of Review

         1. Merits

         Pursuant to the AEDPA[1], 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).

         2. 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”[2] and “adequate”[3] - 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”).

         B. Ground One

         In Ground One, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the trial court admitted evidence of prior bad acts to demonstrate that Petitioner had a propensity for violence. (Doc. 1 at 6; Doc. 4.) Petitioner states that the “prior bad acts in which the Petitioner was acquitted on was used in his third second degree murder trial to gain an unlawful conviction which violates due process of law, as guaranteed by Amendments 6, 5 and 14th to the U.S. Constitution. Ashe v. Swenson, 397 U.S. 436, 443, 445-46 (1970).” (Doc. 1 at 12.)

         In denying this claim on direct review, the Arizona Court of Appeals stated:

¶6 Korelc argues the superior court should not have allowed the State to introduce the other acts evidence that was the subject of the charges in the separate trials. He contends the superior court should have precluded this evidence under Arizona Rule of Evidence (“Rule”) 404(b). We disagree. State v. Lehr, 227 Ariz. 140, 147, ¶ 19, 254 P.3d 379, 386 (2011) (appellate court reviews superior court's admission of other acts evidence for abuse of discretion).
¶7 Rule 404(b) prohibits the admission of evidence of other acts “to prove the character of a person in order to show action in conformity therewith” but allows admitting such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Other acts evidence is admissible if it is admitted for a proper purpose, relevant, not unfairly prejudicial under Rule 403, and if the court gives “an appropriate limiting instruction upon request.” State v. Nordstrom, 200 Ariz. 229, 248, ¶ 54, 25 P.3d 717, 736 (2001) (citations omitted), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012). In addition, the State must prove by clear and convincing evidence the other acts occurred and the defendant committed the acts. State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997) (citations omitted).
¶8 At trial, the State introduced other acts evidence through the testimony of I.F., a member of a local church where Korelc helped set up the church for rehearsals. I.F., who was in his late 70's, paid Korelc for helping at the church. According to I.F., two days before R.G.'s death, he went to Korelc's apartment and when he arrived, he saw Korelc and R.G. outside yelling at each other. Korelc was waiving his pistol, and R.G. was screaming at him to put it away. When R.G. told Korelc he might hurt someone, Korelc put the gun in her face and said, “[o]ne word more out of you, Bitch, and it's bang bang.” When I.F. asked Korelc to put the gun down, he pointed the gun at I.F. and said, “[y]ou're next.” After I.F. persuaded Korelc to sit down, he left without calling the police.
¶ 9 I.F. also testified that at approximately four o'clock in the afternoon on the day of R.G.'s death, Korelc telephoned him and told him he owed him money and he was coming over to get it. A short time later, Korelc and R.G. arrived at I.F.'s house in a car. When I.F. went out to greet them, Korelc pointed his pistol at him and demanded money. R.G. became upset and started screaming at Korelc. Although I.F. did not believe he owed Korelc any money, he nevertheless gave him $100 “because he said if I didn't, [he was] going to blow my head off.” I.F. attempted to convince R.G. to get out of the car, but she refused stating, “No. No. No. He'll be all right. I'll clean him up. He'll be all right. He'll be all right.” Korelc and R.G. then left. The following day, after hearing about R.G.'s death, I.F. called the police to report he had information that might be relevant to her death.
¶10 Korelc first argues the superior court should have precluded this other acts evidence because the State failed to prove by clear and convincing evidence he committed these other acts. We disagree. Although Korelc was acquitted of the charges brought against him based on these other acts, “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 672, 107 L.Ed.2d 708 (1990); accord State v. Yonkman, 229 Ariz. 291, 296-97, ¶¶ 18-21, 274 P.3d 1225, 1230-31 (App. 2012). Evidence is clear and convincing if it persuades the trier of fact “the truth of the contention is highly probable, ” State v. Roque, 213 Ariz. 193, 215, ¶ 75, 141 P.3d 368, 390 (2006) (quotations and citations omitted), and a victim's testimony can be sufficient to demonstrate by clear and convincing evidence an incident occurred. State v. Vega, 228 Ariz. 24, 29 n. 4, ¶ 19, 262 P.3d 628, 633 n. 4 (App. 2011) (citation omitted).
¶11 Further, contrary to Korelc's argument, I.F.'s testimony was not “incredible” because he had testified that although frightened with death multiple times he had not called police to report the threats or attempted to alert a nearby police officer during one of the incidents. Based on our review of the record, I.F .'s testimony was not so incredible that no reasonable person could believe it. See State v. Williams, 111 Ariz. 175, 177-78, 526 P .2d 714, 716-17 (1974) (citation omitted) (uncorroborated testimony by victim sufficient to establish proof beyond a reasonable doubt unless account “is physically impossible or so incredible that no reasonable person could believe it”).
¶12 Korelc also argues the superior court should have precluded the other acts evidence because the State did not offer it for a proper purpose under Rule 404(b). We disagree. The incident two days before R.G.'s death involved Korelc threatening to shoot R.G. Evidence of prior threats or assaults by a defendant against a murder victim is properly admissible to show “motive and intent.” State v. Gulbrandson, 184 Ariz. 46, 61, 906 P.2d 579, 594 (1995); see also State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158, 1167 (1994) (“Defendant's prior physical abuse of and threats against [victim] were relevant to show his state of mind and thus were properly admitted under Rule 404(b).”).
¶13 The second incident, which occurred within two hours of R.G.'s death, was likewise admissible to show Korelc's state of mind at the time of the murder and to rebut his claim of accident. See State v. Chaney, 141 Ariz. 295, 309-10, 686 P.2d 1265, 1279-80 (1984) (evidence of other bad acts admissible because “jury was entitled to know under what conditions [defendant] was operating” at time of alleged offense); United States v. Hillsberg, 812 F.2d 328, 334 (7th Cir. 1987) (evidence of prior gun use on day of murder admissible because defendant's “erratic behavior on the day was germane in determining his state of mind at the time of the fatal shooting”); State v. Kelley, 664 A.2d 708, 710-11 (Vt. 1995) (citations omitted) (acts involving third parties that occurred just hours before murder had “great probative value, ” provided “the context in which the shooting took place, ” and were “probative of defendant's state of mind just prior to the shooting”); Sturgis v. State, 932 P.2d 199, 201-03 (Wyo. 1997) (evidence defendant threatened another person two days prior to shooting victim relevant to rebut defendant's claim of accident and show intent).
¶14 Finally, Korelc argues the superior court should have precluded the other acts evidence because it was unfairly prejudicial under Rule 403. Evidence is unfairly prejudicial when it has “an undue tendency to suggest a decision on an improper basis, such as emotion, sympathy, or horror.” Gulbrandson, 184 Ariz. at 61, 906 P.2d at 594 (citation omitted). Here, the other acts evidence was clearly relevant to the critical issue of Korelc's state of mind at the time of the shooting and to his “accident” defense. Further, the superior court instructed the jury on the proper limited use of this evidence at the conclusion of Korelc's cross-examination of I.F. and again in the final instructions. Under these circumstances and because our supreme court has held “absent some evidence to the contrary, ” we presume the jury followed the instructions, State v. Newell, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994), the superior court did not abuse its discretion in admitting the other acts evidence over Korelc's Rule 403 objection. “Rule 403 weighing is best left to the trial court and, absent an abuse of discretion, will not be disturbed on appeal.” State v. Spencer, 176 Ariz. 36, 41, 859 P.2d 146, 151 (1993).

(Doc. 7, Exh. EE at 4-10) (footnotes omitted).

         In general, state law matters, including a trial court's evidentiary rulings, are not proper grounds for habeas corpus relief. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (internal quotation omitted); see Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Only if the admission of the evidence was so prejudicial as to offend due process may the federal courts properly consider it. See, e.g., Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995).

         The United States Supreme Court has “very narrowly” defined the category of infractions that violate the due process test of fundamental fairness. See Dowling, 493 U.S. at 352. Pursuant to this narrow definition, the Court has declined to hold that evidence of other crimes or bad acts is so extremely unfair that its admission violates fundamental conceptions of justice. See Estelle, 502 U.S. at 75 & n.5. Thus, there is no clearly established Supreme Court precedent which holds that a state violates due process by admitting evidence of prior bad acts. See, e.g., Bugh v. Mitchell, 329 F.3d 496, 512-13 (6th Cir. 2003) (state court decision allowing admission of evidence pertaining to petitioner's alleged prior, uncharged acts of child molestation was not contrary to clearly established Supreme Court precedent because there was no such precedent holding that state violated due process by permitting propensity evidence in the form of other bad acts evidence).

         Moreover, although “clearly established Federal law” under the AEDPA refers only to holdings of the United States Supreme Court, the Court notes that even under Ninth Circuit precedent Petitioner would not be entitled to relief. The Ninth Circuit has held that the admission of “other acts” evidence violates due process only if the evidence is “of such quality as necessarily prevents a fair trial.” Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986).

         Lastly, the Court notes that “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” Dowling, 493 U.S. at 349. In Dowling, the Court upheld the admission of prior acts for which Dowling had been acquitted, because the standard under Fed.R.Evid. 404(b) for admission of prior acts was whether “‘the jury can reasonably conclude that the act occurred and that the defendant was the actor.'” Id. at 348 (quoting Huddleston v. United States, 485 U.S. 681, 689 (1988)). This standard was lower than the “reasonable doubt” standard required for conviction for those same acts. “If an act that could have been proved to a lesser degree than that required for conviction is for some reason probative in a subsequent trial, it need not be excluded because of the prior acquittal.” United States v. Seley, 957 F.2d 717, 723 (9th Cir. 1992). Thus, the second Dowling jury could determine under a lower standard of proof that Dowling committed the prior act, even though a previous jury was unable to determine he committed that act beyond a reasonable doubt.

         In this case, the Court finds that the admission of the contested evidence does not constitute a basis for habeas relief. There was no violation of clearly established federal law, and there was no due process violation because admission of the evidence did not render Petitioner's trial unfair. The contested evidence was limited as it was admitted for proper purpose pursuant to Rule 404(b), it was properly admitted under the clear and convincing standard, see State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194, 1198 (1997) (en banc), and the contested evidence had minimal impact given the amount of other evidence implicating Petitioner. Furthermore, at the close of trial (and at the conclusion of Petitioner's cross-examination of “I.F.”), the court gave the following limiting instruction:

Other acts. Evidence of other acts has been presented. You may consider --that should say these acts only if you find that the State has proved by clear and convincing evidence that the defendant committed these acts. You may only consider these acts to establish the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. You must not consider these acts to determine the defendant's character or character trait or to determine that the defendant acted in conformity with the defendant's character or character trait and, therefore, committed the charged offense.

         Accordingly, the Court finds that the state court decision is neither contrary to nor an unreasonable application of clearly established federal law. ...


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