United States District Court, D. Arizona
J. Markovich United States Magistrate Judge
Antoinne Jolly filed his pro se petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 challenging his
convictions for two counts of sexual assault. (Doc. 1).
Petitioner raises four grounds for relief: 1) ineffective
assistance of counsel (“IAC”); 2) due process
violations; 3) fundamental error by the trial court; and 4)
prosecutorial misconduct. Respondents filed an Answer contending
that all of Petitioner's claims are either procedurally
barred, not cognizable on habeas review, or without merit.
Court finds that Ground One, Ground Four, and subclaims a, b,
d, and e of Ground Two are technically exhausted and
procedurally defaulted and thus not properly before this
Court for review. The Court further finds that Petitioner
does not demonstrate cause and prejudice or a fundamental
miscarriage of justice to excuse the procedural default of
his claims. As to subclaim c of Ground Two, the Court finds
that this claim is properly exhausted and not procedurally
defaulted, but that Petitioner has failed to show that the
state court's decision was contrary to federal law, based
on an unreasonable application of such law, or based on an
unreasonable determination of the facts. Finally, the Court
finds that Petitioner's claims in Ground Three are not
cognizable on habeas review. Accordingly, the petition will
FACTUAL AND PROCEDURAL BACKGROUND
Trial, Sentencing, and Appeal
County Superior Court jury found Petitioner guilty of two
counts of sexual assault. (Ex. B). Petitioner was sentenced
to two consecutive prison terms totaling 10.5 years.
Id. The Arizona COA summarized the facts of the case
On New Year's Eve in 2011, the victim, S., and her
husband had “a few drinks” and took
“Percocets” before going to a friend's house
and having more to drink. They then went to a bar, where S.
drank “heavily.” The two left the bar after
midnight and got into an argument while waiting for a cab.
S.'s husband told her to wait there for the cab and he
began walking home.
Jolly and his fiancée, G., were walking through the
parking lot after leaving a nearby bar and saw S. crying.
Jolly told G. they should take S. home, and S. got in their
car. It was apparent to G. that S. was “clearly out of
it” and “ [ i ]ntoxicated.” As Jolly drove,
G. asked S. for her address, but S. was “completely
drunk, ” falling against the front seat, and could not
provide more than a two-digit number and
“southwest” before she “just went
out.” Jolly and G. took her to their apartment, where
she laid down on a futon in the living room and began to fall
asleep. When G. went to the bedroom, Jolly told her he was
going to stay up to play a video game and then come to bed.
G. woke up a couple hours later, came out of the bedroom, and
saw Jolly on the futon “ leaning over” S.
“very close to her face” and “ rubbing her
S. had her face in a pillow and was crying. Jolly told G.
that S. had a panic attack and he was “just trying to
comfort her.” He told G. to go back to bed, which she
did. Later, G. woke up to a “kissing” and
“sucking sound.” When she walked into the living
room, she saw S. “laying down but leaning into
[Jolly's] lap” and performing oral sex. Jolly
looked up and said “Oh, that was wrong.” G. told
S. to leave and S. “scrambled up and took off.”
S. “woke up vomiting” in a laundry room in the
apartment complex. She did not know where she was or how she
had gotten there, but had a vague recollection of waking up
earlier to “somebody having sex with [her].” She
was missing her underwear and shoes. She searched for the
string of the tampon she had been wearing but
“didn't feel it” and “freaked
out.” Her vagina “felt sore.” She crouched
under a stairway until the sun came up, found someone with a
phone, and called her husband to pick her up. When he
arrived, she told him she “needed to go to the
hospital.” A medical examination revealed genital tears
and swelling, “consistent with penetration or
blunt-force trauma” within the preceding twenty-four
hours. Her tampon was “tucked in a fold, ”
“really tight” against her cervix, which likely
caused the pelvic pain S. reported. DNA matching Jolly's
profile was found on both of S.'s breasts.
(Ex. E ¶¶ 2-4).
his conviction, Petitioner sought relief in the Arizona COA.
Appointed counsel filed a brief presenting three issues for
review: 1) insufficient evidence to support the crime of
sexual assault when the State's theory was that the
victim lacked the capacity to consent, but there was
insufficient evidence of her lack of consent and no evidence
that Petitioner knew of her lack of consent; 2) the trial
court erroneously instructed the jury on the elements of
sexual assault by excluding the element that Petitioner knew
the sex was without consent, and by including a definition of
“without consent” that relieved the State of its
burden to prove that the victim did not consent; and 3)
Petitioner's sentences should be concurrent under the
state statute. (Ex. D).
April 14, 2014, the COA found no reversible error and
affirmed Petitioner's conviction and sentences. (Ex. E).
Petitioner filed a petition for review with the Arizona
Supreme Court, which the court denied on December 2, 2014.
Petition for Post-Conviction Relief
January 28, 2015 Petitioner initiated proceedings in Pima
County Superior Court for post-conviction relief
(“PCR”). (Ex. H). Appointed counsel filed a
notice stating that he was unable to find any claims for
relief to raise in a Rule 32 petition, and requested
additional time for Petitioner to file a pro se petition.
(Ex. K). Petitioner filed a pro se petition and presented six
issues for review: 1) IAC based on counsel's failure to
object to preclusion of relevant evidence, allowing inclusion
of prejudicial evidence, and lack of diligence and continuous
communication with Petitioner; 2) abuse of discretion by the
trial court for precluding evidence of Petitioner's
military service and PTSD and denying him a defense and due
process; 3) State's failure to introduce evidence that
Petitioner used threats, force, or supplied drugs or drinks
to the victim, thereby negating Petitioner's intent; 4)
IAC where counsel failed to present facts that the victim
never identified Petitioner in a lineup and told police she
was assaulted by three Hispanics; 5) abuse of discretion by
the trial court for denying Petitioner's Rule 20 motion
for a directed verdict because there was a lack of evidence
showing Petitioner's guilt; and 6) the trial court erred
in not instructing the jury on intent as stated in the RAJI.
trial court denied PCR on May 3, 2016. (Ex. N). Petitioner
did not file a petition for review with the Arizona COA.
filed his PWHC in this Court on March 18, 2016, asserting
four grounds for relief. (Doc. 1). Petitioner requests that
the Court overturn his convictions and vacate the case.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits the federal court's power to
grant a petition for a writ of habeas corpus on behalf of a
state prisoner. First, the federal court may only consider
petitions alleging that a person is in state custody
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Sections 2254(b) and (c) provide that the federal courts may
not grant habeas corpus relief, with some exceptions, unless
the petitioner exhausted state remedies. Additionally, if the
petition includes a claim that was adjudicated on the merits
in state court proceedings, federal court review is limited
by section 2254(d).
prisoner must exhaust his state remedies before petitioning
for a writ of habeas corpus in federal court. 28 U.S.C.
§ 2254(b)(1) & (c); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To exhaust state
remedies, a petitioner must afford the state courts the
opportunity to rule upon the merits of his federal claims by
fairly presenting them to the state's highest court in a
procedurally appropriate manner. Baldwin v. Reese,
541 U.S. 27, 29 (2004) (“[t]o provide the State with
the necessary opportunity, the prisoner must fairly present
her claim in each appropriate state court . . . thereby
alerting the court to the federal nature of the
claim.”). In Arizona, unless a prisoner has been
sentenced to death, the highest court requirement is
satisfied if the petitioner has presented his federal claim
to the Arizona COA, either through the direct appeal process
or post-conviction proceedings. Crowell v. Knowles,
483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).
is fairly presented if the petitioner describes both the
operative facts and the federal legal theory upon which the
claim is based. Kelly v. Small, 315 F.3d 1063, 1066
(9th Cir. 2003), overruled on other grounds by Robbins v.
Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner
must have “characterized the claims he raised in state
proceedings specifically as federal claims.”
Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000)
(emphasis in original), opinion amended and
superseded, 247 F.3d 904 (9th Cir. 2001). “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.” Johnson v. Zenon, 88
F.3d 828, 830 (9th Cir. 1996). “Moreover, general
appeals to broad constitutional principles, such as due
process, equal protection, and the right to a fair trial, are
insufficient to establish exhaustion.” Hivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
“[a] habeas petitioner who [fails to properly exhaust]
his federal claims in state court meets the technical
requirements for exhaustion” if there are no state
remedies still available to the petitioner. Coleman v.
Thompson, 501 U.S. 722, 732 (1991). “This is often
referred to as ‘technical' exhaustion because
although the claim was not actually exhausted in state court,
the petitioner no longer has an available state
remedy.” Thomas v. Schriro, 2009 WL 775417, *4
(D. Ariz. March 23, 2009). “If no state remedies are
currently available, a claim is technically exhausted,
” but, as discussed below, ...