United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER, SENIOR U.S. DISTRICT JUDGE.
REPORT AND RECOMMENDATION
K. Duncan United States Magistrate Judge.
Earl Tibbetts timely filed a Petition for Writ of Habeas
Corpus (“Petition”) in this Court. Respondents
argue that Tibbetts' claims are either unexhausted,
subject to a procedural bar, or without merit. As described
below, the Court agrees with Respondents and recommends that
Tibbetts' Petition be denied and dismissed with
2014, Tibbetts was indicted by a Pinal County Grand Jury on
one count of luring a minor for sexual exploitation, a class
3 felony, and one count of sexual exploitation of a minor, a
class 2 felony. (Doc. 7, Ex. A) In November 2014, a detective
in the Apache Junction police department swore an affidavit
for a second search warrant of Tibbetts' cell phone to be
conducted with newly released forensic technology that could
obtain deleted content. (Doc. 9, Ex. R at 12).
conclusion of a jury trial in Pinal County Superior Court,
Tibbetts was found guilty of both counts in the indictment.
(Doc. 7, Ex. B) Tibbetts was sentenced to concurrent terms,
the longest of which was 12 years. (Doc. 7, Ex. B) Tibbetts,
through counsel, initiated a direct appeal and argued that he
was prejudiced when the Superior Court denied his trial
counsel's line of questioning based on Ariz. Rev. Stat.
§13-1421, commonly known as the rape shield law. (Doc.
7, Exs. C, D) At the conclusion of briefing, the Arizona
Court of Appeals affirmed Tibbetts' convictions and
sentences. (Doc. 7, Exs. E, F)
then filed a Notice of Post-Conviction Relief. (Doc. 7, Ex.
G) After his counsel informed the Superior Court that he
could find no meritorious or colorable claims for relief, he
requested an extension of time for Tibbetts to file a pro
per petition. (Doc. 7, Ex. H) It appears that the Court
granted that request and Tibbetts filed a pro per
petition where he alleged various ways he received
ineffective assistance of counsel and was subjected to errors
by the trial judge. (Doc. 7, Ex. I) At the conclusion of
briefing, the Superior Court ruled that the arguments in the
Petition were “precluded as having been previously
ruled upon or untimely filed or the Petition lack[ed]
sufficient basis in law and fact to warrant further
proceedings herein and no useful purpose would be served by
further proceedings.” (Doc. 7, Ex. J; Doc. 8, Exs. K, L
then appealed the Superior Court's denial of his petition
to the Arizona Court of Appeals. (Doc. 8, Ex. M) At the
conclusion of briefing, the Court of Appeals granted review
and denied relief. (Doc. 8, Exs. N, O, P) The Court of
Appeals first concluded that Tibbetts' claims of trial
error were precluded under Arizona Rule of Criminal Procedure
32.2(a)(3) “because they could have been raised on
appeal but were not.” (Doc. 8, Ex. P at ¶ 4) The
Court also summarily rejected the “bulk of
Tibbetts's claims of ineffective assistance of trial
counsel” because he had “not provided supporting
evidence or citations to the record, nor ha[d] he shown that,
had counsel acted as Tibbetts believed he should have, the
result of the case would have been different.” (Doc. 8,
Ex. P at ¶ 6) Similarly, the Court of Appeals concluded
that he was not entitled to relief for any of his ineffective
assistance of appellate counsel claims “[b]ecause he
ha[d] not established that any of these arguments would
warrant relief on appeal.” (Doc. 8, Ex. P at ¶ 8)
The Court also declined to address several of Tibbetts'
claims because he had not provided any supporting evidence.
(Doc. 8, Ex. P at ¶¶ 9, 12, n.4)
then filed his Petition in this Court where he argues he is
entitled to relief because of ineffective assistance of trial
and appellate counsel, prosecutorial misconduct, and trial
court errors. (Doc. 1) Respondents argue that most of
Tibbetts' claims cannot be reviewed by this Court and the
ones that can be reviewed are without merit. (Doc. 6)
Ineffective Assistance of Counsel Claims.
Claims in the Petition that were not presented to the Court
prisoner must properly exhaust all state court remedies
before this Court can grant an application for a writ of
habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan
v. Henry, 513 U.S. 364, 365 (1995); Coleman v.
Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners
properly exhaust state remedies by fairly presenting claims
to the Arizona Court of Appeals in a procedurally appropriate
manner. O'Sullivan v. Boerckel, 526 U.S. 838,
843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008,
1010 (9th Cir. 1999); Roettgen v.
Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To
fairly present a claim, a petitioner must support it with a
statement of the operative facts and the specific federal
legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33
(2004); Gray v. Netherland, 518 U.S. 152, 162-63
(1996); Duncan, 513 U.S. at 365-66. General appeals
to broad constitutional principles, “such as due
process, equal protection, and the right to a fair trial,
” do not establish exhaustion. Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
implied procedural bar exists if a petitioner does not fairly
present his claim in state court and no state remedies remain
available. Teague v. Lane, 489 U.S. 288, 298-99
(1989); Rose v. Lundy, 455 U.S. 509, 519-20
(1982); Beaty v. Stewart, 303 F.3d 975, 987
(9th Cir. 2002); Poland v. Stewart, 169
F.3d 573, 586 (9th Cir. 1999); White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
undisputed that several of Tibbetts' claims of
ineffective assistance of trial counsel were raised for the
first time in the Petition. Specifically, his claims that
trial counsel failed to: object to irrelevant witnesses;
provide discovery documents to Tibbetts, including police
reports and the Grand Jury indictment; waived time without
Tibbetts' presence or permission; and object to
prosecutorial misconduct. (Doc. 1 at 6; Doc. 7, Ex. I; Doc.
8, Ex. M) In addition, several of Tibbetts' claims of
ineffective assistance of appellate counsel were raised in
the Petition for the first time. Specifically, his claims
that appellate counsel failed to argue that: trial counsel
should have interviewed witnesses before trial; the trial
court should not have allowed certain witnesses to testify;
the trial court should have conducted an evidentiary hearing;
trial counsel failed to communicate with Tibbetts; trial
counsel failed to provide discovery documents to ...