United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT:
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.
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
¶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.)
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).
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.)
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.)
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.
Standards of Review
to the AEDPA, 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.
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).
Exhaustion and Procedural Default
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).
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.”).
“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.
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).
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.
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
“adequate” - 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)).
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).
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
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).
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
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.)
denying this claim on direct review, the Arizona Court of
¶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)
¶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
¶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
¶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).
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).
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
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).
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.
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.
the Court finds that the state court decision is neither
contrary to nor an unreasonable application of clearly
established federal law. ...