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Boggs v. Ryan

United States District Court, D. Arizona

April 16, 2018

Steve Alan Boggs, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable G. Murray Snow United States District Judge.

         Before the Court is Petitioner Steve Alan Boggs's Motion for Evidentiary Development. (Doc. 48.) Respondents filed a response in opposition to the motion and Boggs filed a reply. (Docs. 58, 61.) The motion is denied in part and granted in part, as set forth herein.

         I. BACKGROUND

         In 2002, Boggs and Christopher Hargrave shot three fast-food workers to death. In 2005, Boggs was found guilty of three counts of first-degree murder, among other counts, and sentenced to death. The following facts are taken from the opinion of the Arizona Supreme Court upholding the convictions and sentences. State v. Boggs, 218 Ariz. 325, 185 P.3d 111 (2008).

         On May 19, 2002, police officers responded to a 911 call from a fast-food restaurant in Mesa. The first officer to arrive found one of the restaurant's employees, Beatriz Alvarado, lying on the ground outside the back door; she repeatedly asked for help but died from two gunshot wounds to her back. Inside the restaurant, officers found the body of another employee, Fausto Jimenez, next to a telephone; Jimenez had been shot three times in the back but managed to dial 911 shortly before dying from his wounds. In the freezer was the body of a third employee, Kenneth Brown, who had died from two gunshot wounds. Police found shell casings and bullets in the freezer. Two cash registers were opened and contained only coins; a third register appeared as if someone had tried to pry it open. Jimenez and Brown were missing their wallets.

         The next night, Hargrave, a friend of Boggs's who had recently been fired from the restaurant, tried to use Jimenez's bank card at an ATM.

         Two days after the murders, Boggs traded in a Taurus handgun at a pawnshop. Police recovered the weapon and determined that it fired all of the shell casings and bullet fragments found at the scene, including bullet fragments found in the victims' bodies.

         During police interviews with Detective Donald Vogel, Boggs “confessed to playing an active role in the robbery and admitted shooting at the victims.” Boggs, 218 Ariz. at 331, 185 P.3d at 117. He described the murders in detail, explaining that “the victims were forced at gunpoint to lie down in the work area of the restaurant, ordered to remove everything from their pockets, ordered to march through the cooler into the back freezer with their hands interlaced on top of their heads, forced to kneel down, and then shot in rapid succession.” Id. at 341, 185 P.3d at 127. Boggs also told police that after leaving the victims shot in the freezer, he and Hargrave heard screaming, “at which point he returned to the freezer and shot some more.” Id.

         Boggs and Hargrave were involved in a white supremacist “militia” they called the Imperial Royal Guard. They and their girlfriends were the only members. In a letter to a Detective Vogel, written after his confession, Boggs explained that his motive for the murders was racial rather than pecuniary.

         Prior to trial, Boggs waived his right to counsel and represented himself. He relinquished his right to self-representation after several days of jury selection, and his advisory counsel took over his defense. Boggs moved to resume self-representation between the aggravation and penalty phases, but the court denied his request. The jury found Boggs guilty of all charged crimes.

         At sentencing, the jury found three aggravating factors for each of the murders: expectation of pecuniary gain, under A.R.S. § 13-703(F)(5); murders committed in an especially heinous, cruel or depraved manner, under § 13-703(F)(6); and a conviction for one or more other homicides during the commission of the offense, under § 13- 703(F)(8). The defense presented mitigation evidence concerning Boggs's troubled childhood and mental health issues. At the close of the trial, the jury found Boggs's mitigation not sufficiently substantial to call for leniency and concluded that death was the appropriate sentence for each murder.

         The Arizona Supreme Court affirmed the convictions and sentences. Boggs, 218 Ariz. 325, 185 P.3d 111. After unsuccessfully pursuing post-conviction relief (“PCR”), Boggs filed a petition for writ of habeas corpus in this Court. (Doc. 15.) Respondents filed an answer and Boggs filed a reply. (Docs. 21, 26.) Boggs filed the pending motion for evidentiary development on February 3, 2017. (Doc. 48.)

         II. APPLICABLE LAW

         A. AEDPA

         Federal habeas claims are analyzed under the framework of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim adjudicated on the merits in state court unless the state court's adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d).

         The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams (Terry) v. Taylor, 529 U.S. 362, 410 (2000). Under § 2254(d), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

         In Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the Court reiterated that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” See Murray (Robert) v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford state courts' decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our responsibilities under § 2254(d)(1).”).

         However, Pinholster does not bar evidentiary development where the court has determined, based solely on the state court record, that the petitioner “has cleared the § 2254(d) hurdle.” Madison v. Commissioner, Alabama Dept. of Corrections, 761 F.3d 1240, 1249-50 (11th Cir. 2014); see Pinholster, 563 U.S. at 185; Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir. 2013) (explaining that Pinholster bars evidentiary hearing unless petitioner satisfies § 2254(d)).

         For claims not adjudicated on the merits in state court, federal review is generally not available when the claims have been denied pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Arizona, there are two avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).

         For unexhausted and defaulted claims, “federal habeas review . . . is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Coleman further held that ineffective assistance of counsel in PCR proceedings does not establish cause for the procedural default of a claim. Id.

         In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Court established a “narrow exception” to the rule announced in Coleman. Under Martinez, a petitioner may establish cause for the procedural default of an ineffective assistance claim “by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland . . .' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); see Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). The Ninth Circuit has explained that “PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel who was not constitutionally ineffective.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).

         Martinez applies only to claims of ineffective assistance of trial counsel; it has not been expanded to other types of claims. Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (denying petitioner's argument that Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that only the Supreme Court could expand the application of Martinez to other areas); see Davila v. Davis, 137 S.Ct. 2058, 2062- 2063, 2065-66 (2017) (explaining that the Martinez exception does not apply to claims of ineffective assistance of appellate counsel).

         B. Evidentiary Development

         A habeas petitioner is not entitled to discovery “as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Rule 6(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Whether a petitioner has established “good cause” for discovery requires a habeas court to determine the essential elements of the petitioner's substantive claim and evaluate whether “specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)) (internal quotation marks omitted).

         An evidentiary hearing is authorized under Rule 8 of the Rules Governing § 2254 Cases. Pursuant to § 2254(e)(2), however, a federal court may not hold a hearing unless it first determines that the petitioner exercised diligence in trying to develop the factual basis of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If the failure to develop a claim's factual basis is attributable to the petitioner, a federal court may hold an evidentiary hearing only if the claim relies on (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the [petitioner] guilty of the underlying offense.” Id.

         When the factual basis for a claim has not been fully developed in state court, a district court first determines whether the petitioner was diligent in attempting to develop the record. See Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). The diligence assessment requires a determination of whether a petitioner “made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Williams (Michael), 529 U.S. at 435. For example, when there is information in the record that would alert a reasonable attorney to the existence and importance of certain evidence, the attorney “fails” to develop the factual record if he does not make reasonable efforts to investigate and present the evidence to the state court. Id. at 438- 39, 442. The Ninth Circuit has explained that “a petitioner who ‘knew of the existence of [ ] information' at the time of his state court proceedings, but did not present it until federal habeas proceedings, ‘failed to develop the factual basis for his claim diligently.'” Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (quoting Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)).

         Significantly, an evidentiary hearing is not required if the issues can be resolved by reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise.”); see Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”). Likewise, “an evidentiary hearing is not required if the claim presents a purely legal question and there are no disputed facts.” Beardslee v. Wood ford, 358 F.3d 560, 585 (9th Cir. 2004); see Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

         Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas court is authorized to expand the record to include additional material relevant to the petition. The purpose of expansion of the record under Rule 7 “is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing.” Advisory Committee Notes, Rule 7, 28 U.S.C. foll. § 2254; see also Black ledge v. Allison, 431 U.S. 63, 81-82 (1977); Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (explaining that the need for an evidentiary hearing may be obviated by expansion of record); Griffey v. Lindsey, 345 F.3d 1058, 1067 (9th Cir. 2003) (stating that a hearing is not warranted if claims can “be resolved by reference to the state court record and the documentary evidence”), vacated on other grounds as moot, 349 F.3d 1157 (9th Cir. 2003).

         Section 2254(e)(2) limits a petitioner's ability to present new evidence through a Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing. See Cooper-Smith, 397 F.3d at 1241 (applying § 2254(e)(2) to expansion of the record when intent is to bolster the merits of a claim with new evidence) (citing Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam)). Accordingly, when a petitioner seeks to introduce new affidavits and other documents never presented in state court, he must either demonstrate diligence in developing the factual basis in state court or satisfy the requirements of § 2254(e)(2).

         III. ANALYSIS

         Boggs seeks evidentiary development on 19 of the 43 claims in his 450-page habeas petition. These include both exhausted and unexhausted claims.

         A. Unexhausted Claims

         The parties agree that the following claims for which Boggs seeks evidentiary development are procedurally defaulted: 1, 4 (in part), 7, 8, 15 (in part), 17, 18, 22, 40, and 43. Boggs contends their default is excused under Martinez by the ineffective assistance of appellate or PCR counsel. The Court disagrees.

         In Claim 1, Boggs alleges that he was tried and sentenced while legally incompetent and that his due process rights were violated when he was found competent to waive representation. (Doc. 15 at 42.) Claim 4 alleges in part that Boggs's statements to Detective Vogel were inadmissible because Boggs was not competent to waive his right to counsel or his privilege against self-incrimination. (Id. at 80.) In Claim 7, Boggs alleges that the trial court violated his rights by failing to maintain a complete record of the trial. (Id. at 138.) In Claim 8, Boggs alleges that his constitutional rights were violated when he was ordered to wear a stun belt and leg restraint during his trial. (Id. at 149.) In Claim 15, Boggs alleges in part that his confrontation clause rights were violated by the introduction of rebuttal evidence during the penalty phase of his trial. (Id. at 224.) In Claim 17, Boggs alleges that the prosecutor committed misconduct when he argued that mitigation must have a causal nexus to the crime and presented evidence of Boggs's militia involvement. (Id. at 294.) In Claim 22, Boggs alleges that his execution would be unconstitutional because he is mentally impaired. (Id. at 339.) In Claim 40, Boggs alleges that his constitutional rights were violated by the death-qualification of his jury. (Id. at 422.) Finally, in Claim 43, Boggs alleges cumulative prejudicial errors at his trial. (Id. at 437.)

         Boggs did not present these claims on direct appeal. (See Doc. 21-1, Ex. A.) Therefore, as Boggs concedes, the claims are procedurally defaulted. Boggs argues, however, that the ineffective assistance of appellate and PCR counsel provide cause for the default and establish prejudice. These arguments fail.

         First, before ineffective assistance of appellate counsel may be utilized as cause to excuse a procedural default, the particular ineffective assistance allegation must first be exhausted before the state courts as an independent claim. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted”); Murray v. Carrier, 477 U.S. 478, 489-90 (1986); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988). During the PCR proceedings, Boggs did not allege ineffective assistance of appellate counsel based on counsel's failure to raise these claims on appeal. (See ROA-PCR 54.)[1] Therefore, ineffective assistance of appellate counsel cannot constitute cause for their default. Boggs does not attempt to demonstrate that a fundamental miscarriage of justice will occur if the claims are not resolved on the merits.

         Next, the alleged ineffectiveness of PCR counsel does not excuse the default under Martinez, which, as described above, applies only to defaulted claims of ineffective assistance of trial counsel. Unlike allegations of ineffective assistance of trial counsel, these claims could have been raised on direct appeal; therefore, they are not subject to the “limited qualification to Coleman” established in Martinez, 566 U.S. at 15. Boggs asserts that the equitable principles of Martinez should apply to other types of claims, but cites no authority for that argument, and the case law holds the opposite. See Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126-27. Therefore, these claims remain procedurally barred.

         In addition, Claims 22 and 40 are clearly without merit. In Claim 22, Boggs alleges that he suffers from “serious mental illness” and his execution would violate the Eighth and Fourteenth Amendments. (Doc. 15 at 339.) In Ford v. Wainwright, 477 U.S. 399, 409-10 (1986), the Supreme Court held that it is a violation of the Eighth Amendment to execute someone who cannot comprehend that his execution is based on a conviction for murder. Boggs, however, does not contend that he is incompetent to be executed under Ford, only that he has “serious mental illness.” In any event, a determination of incompetence cannot be made until an execution warrant is issued making the petitioner's execution imminent. See Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th Cir. 1997) (citing Herrera v. Collins, 506 U.S. 390, 406 (1993)).

         In Claim 40, Boggs alleges that his constitutional rights were violated by the death-qualification of his jury. (Doc. 15 at 422.) Clearly established federal law holds that the death-qualification process in a capital case does not violate a defendant's right to a fair and impartial jury. See Lockhart v. McCree, 476 U.S. 162, 178 (1986); Wainwright v. Witt, 469 U.S. 412, 424 (1985); see also Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996) (finding death qualification of Arizona jurors not inappropriate).

         Evidentiary development is denied on these unexhausted claims.

         B. Exhausted Claims

         Boggs seeks discovery and expansion of the record in support of Claim 6, alleging that the pretrial seizure of materials from his jail cell impeded his ability to prepare for trial and consult with advisory counsel. (Doc. 48 at 32-34; see Doc. 15 at 117.) The Arizona Supreme Court denied this claim on direct appeal. Boggs, 218 Ariz. at 336-37, 185 P.3d at 122-23. Under Pinholster, 563 U.S. at 161, Boggs is not entitled to evidentiary development.

         Boggs also seeks discovery and expansion of the record for a series of claims challenging the death penalty in general and elements of Arizona's death penalty scheme in particular. The Arizona Supreme Court denied these claims on direct appeal. Boggs, 218 Ariz. at 344-45, 325, 185 P.3d at 130-31.

         Boggs alleges that the death penalty constitutes cruel and unusual punishment, Claim 24, and serves no purpose beyond that served by a life sentence, Claim 30. (Doc. 15 at 389, 404.) In Claim 26, Boggs alleges that the “especially heinous, cruel or depraved” aggravating circumstance, A.R.S. § 13-703(F)(6), is unconstitutionally vague and overbroad. (Id. at 394.) In Claim 28, Boggs alleges that Arizona's death-penalty statute insufficiently channels the discretion of the sentencing authority. (Id. at 400.) ...


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