United States District Court, D. Arizona
G. Campbell, Senior United States District Judge
the Court is Petitioner Alfredo Lucero Garcia's motion
for evidentiary development. (Doc. 40.) The motion is
fully briefed. (Docs. 46, 47.) For the reasons stated below,
the motion will be denied.
convicted Petitioner of armed robbery and first degree murder
for the 2002 shooting of Steven Johnson. Petitioner was
sentenced to death. The Arizona Supreme Court set forth the
following facts in its opinion affirming the convictions and
On the afternoon of May 21, 2002, Daniel Anderson was tending
bar at Harley's Club 155. Steven Johnson, the bar's
owner, was talking with Anderson. Garcia entered and asked to
use the restroom; they directed him toward the rear of the
bar, where there was also a back door. Shortly thereafter,
Johnson went to the rear of the bar and began fixing a broken
ATM. Anderson followed and they continued talking. Johnson
kneeled beside the ATM with a stack of $20 bills.
Garcia suddenly burst through the back door and shouted
“drop the money.” Directly behind Garcia was
James Taylor Sheffield, who was crouching and carrying a gun.
Johnson stood, threw the $20 bills on the ground, and said
“just get out, get out of here.” Garcia pushed
Johnson against the wall. Anderson stood “frozen”
until Johnson looked at him and said “get out of
here.” Anderson ran into the bar's office, pushed
an alarm button, and then escaped. He heard a gunshot before
entering the office and heard a scuffling sound followed by a
second gunshot as he fled.
Anderson went to another bar and called the police. Upon
arriving at Harley's, police found Johnson's body
outside the back door and $20 bills scattered nearby. Police
also viewed video recordings from bus security cameras on the
afternoon of Johnson's murder. The recordings showed
Garcia and Sheffield boarding a bus near the crime scene and
later getting off at the same stop. The investigation
ultimately led police to arrest Garcia on June 1 and
Sheffield on June 6, 2002.
Garcia and Sheffield were each indicted on one count of first
degree murder and one count of armed robbery; their trials
were later severed. On November 13, 2007, a jury found Garcia
guilty on both counts. After learning of possible juror
misconduct, the trial court empaneled a new jury for the
aggravation and penalty phases. The second jury found that
Garcia was a major participant in the felony and was
recklessly indifferent to Johnson's life. This jury also
found two aggravators: Garcia had been previously convicted
of a serious offense, see A.R.S. § 13-751(F)(2)
(2009); and he had committed first degree murder for
pecuniary gain, see A.R.S. § 13-751(F)(5).
Concluding there was no mitigation sufficiently substantial
to call for leniency, the jury determined that Garcia should
be sentenced to death.
State v. Garcia, 224 Ariz. 1, 7 ¶¶ 2-5,
226 P.3d 370, 376 (2010). Petitioner filed a petition for
post-conviction relief (“PCR”), which the state
court denied without holding an evidentiary hearing. The
Arizona Supreme Court denied review.
filed a petition for writ of habeas corpus in this Court on
December 16, 2015. (Doc. 22.) The petition raises 48 claims.
In the pending motion, Petitioner seeks evidentiary
development with respect to seven of those claims.
habeas claims are analyzed under the framework of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2241 et seq. The
AEDPA defines the substantive and procedural limits on the
claims a capital habeas petitioner may bring, and the Rules
Governing Section 2254 Cases define the types of evidentiary
development a petitioner may seek if his claims otherwise
meet the requirements of the AEDPA.
Exhaustion and Procedural Default
AEDPA requires that a writ of habeas corpus not be granted
unless it appears that the petitioner has properly exhausted
all available state court remedies. 28 U.S.C. §
2254(b)(1); see Coleman v. Thompson, 501 U.S. 722,
731 (1991). To properly exhaust state remedies, the
petitioner must “fairly present” his claims to
the state's highest court in a procedurally appropriate
manner. O'Sullivan v. Boerckel, 526 U.S. 838,
848 (1999). The petitioner meets this requirement by
describing the operative facts and the federal legal theory
on which the habeas claims are based so that state courts
have a fair opportunity to apply controlling legal principles
to the facts bearing upon the claims. See Anderson v.
Harless, 459 U.S. 4, 6 (1982).
may be “technically” exhausted if the petitioner
has lost the opportunity to raise his claim on
“independent and adequate” state law grounds.
Coleman, 501 U.S. at 732 (“A habeas petitioner
who has defaulted his federal claims in state court meets the
technical requirements for exhaustion; there are no state
remedies any longer ‘available' to him.”).
Such technically exhausted claims, however, are considered
procedurally defaulted and are not subject to habeas relief.
See Id. at 731-32; Smith v. Baldwin, 510
F.3d 1127, 1139 (9th Cir. 2007).
Arizona, there are two avenues for petitioners to present and
exhaust federal constitutional claims in state court: direct
appeal and PCR proceedings. Rule 32 of the Arizona Rules of
Criminal Procedure governs PCR proceedings and provides that
a petitioner is procedurally barred 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). If an Arizona court
concludes that a claim was waived under this rule, that
independent and adequate procedural ground precludes federal
habeas relief. See Hurles v. Ryan, 752 F.3d 768, 780
(9th Cir. 2014).
default, however, is not an insurmountable bar to relief. A
petitioner may raise a defaulted claim if the petitioner
“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.
ineffective assistance of counsel claims, a petitioner may
establish cause for a procedural default “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 v. Washington, 466 U.S. 668 (1984),'
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 v. Ryan, 566 U.S. 1, 14 (2012));
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 exception to procedural default 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) (noting that only the
Supreme Court can expand the application of Martinez
to other areas); see Davila v. Davis, 137 S.Ct.
2058, 2062-63, 2065-66 (2017) (explaining that the
Martinez exception does not apply to claims of
ineffective assistance of appellate counsel).
the Rules Governing Section 2254 Cases, a petitioner may seek
to discover and introduce additional evidence in federal
court. But the court's discretion to grant such requests
Cullen v. Pinholster, 563 U.S. 170 (2011), the Court
emphasized that “review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits.” Id. at
181; see also Murray 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).”).
Pinholster does not, however, 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.
Comm'r, Ala. Dep't of Corr., 761 F.3d 1240,
1249-50 & n.9 (11th Cir. 2014); (citing
Pinholster, 563 U.S. at 185); see Henry v.
Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir. 2013).
clear the § 2254(d) hurdle, a petitioner must establish
that the state court's decision (1) “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, ” or (2) “was based on
an unreasonable determination of the facts in light of the
evidence presented” in state court. 28 U.S.C. §
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). A
petitioner who meets the deferential standards of §
2254(d) may be entitled to evidentiary development if he
meets the standards set forth below.
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(a) 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.” 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).
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 did not “fail to
develop” the factual basis of the claim in state court.
See Williams v. Taylor, 529 U.S. 420, 431-32 (2000).
“[A] failure to develop the factual basis of a claim is
not established unless there is lack of diligence, or some
greater fault, attributable to the prisoner or the
prisoner's counsel.” Id. at 432; see
Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir.
1999). “[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).
unusual circumstances, diligence requires that a petitioner
“at a minimum, seek an evidentiary hearing in state
court in the manner prescribed by state law.”
Williams, 529 U.S. at 437. The mere request for an
evidentiary hearing, however, may not be sufficient to
establish diligence if a reasonable person would have taken
additional steps. See Dowthitt v. Johnson, 230 F.3d
733, 758 (5th Cir. 2000) (petitioner requested hearing but
found not diligent because he failed to present affidavits of
family members that were easily obtained without court order
and with minimal expense); see also Alley v. Bell,
307 F.3d 380, 390-91 (6th Cir. 2002); Koste v.
Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003);
McNair v. Campbell, 416 F.3d 1291, 1299-1300 (11th
petitioner failed to develop the claim in state court, 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 factfinder would have
found the [petitioner] guilty of the underlying
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.
Woodford, 358 F.3d 560, 585 (9th Cir. 2004); see
Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.
Expansion of the Record
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 Blackledge 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).
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 v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.
2005), overruled on other grounds by Daire v.
Lattimore, 812 F.3d 766 (9th Cir. 2016). Accordingly,
when a petitioner seeks to introduce new affidavits and other
documents never presented in state court, the petitioner must
either demonstrate diligence in developing the factual basis
in state court or satisfy the requirements of §
seeks discovery, an evidentiary hearing, or expansion of the
record on Claims 1, 2, 4, 5, 9, 15, and 21. These include
both exhausted and procedurally defaulted claims. The Court
addresses Petitioner's evidentiary development requests
Ineffective Assistance of Counsel Claims
seeks evidentiary development on claims of ineffective
assistance of trial counsel during all phases of the trial
(Claims 1 and 2), as well as ineffective assistance of PCR
and appellate counsel (Claim 15). Petitioner breaks Claims 1
and 2 into multiple subclaims, some of which were raised and
denied on the merits in state court, and others that were
procedurally defaulted in state court, as explained on a
claim-by-claim basis below.
claims of ineffective assistance of counsel that have not
been procedurally defaulted, the relevant principals are set
forth in Strickland. To prevail under
Strickland, a petitioner must show that
counsel's representation fell below an objective standard
of reasonableness and that the deficiency prejudiced the
defense. 466 U.S. at 687-88.
inquiry under Strickland is highly deferential, and
“every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” 466 U.S. at 689; see Cox v. Ayers, 613
F.3d 883, 893 (9th Cir. 2010). To satisfy
Strickland's first prong, a defendant must
overcome “the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at
respect to Strickland's second prong, a
petitioner must affirmatively prove prejudice by
“show[ing] that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.” Id.
at 694. A reasonable probability “is a probability
sufficient to undermine confidence in the outcome.”
Claim 1, Petitioner alleges that his trial counsel was
ineffective during the penalty phase in three ways: (A) for
failing to adequately investigate and present readily
available mitigation evidence; (B) for failing to object to
the trial court's alleged refusal to provide the jury
with Sheffield's plea agreement; and (C) for failing to
object to the (F)(5) aggravating factor as unconstitutional.
(Doc. 22 at 40-71.) Petitioner further alleges in Claim 1D
that the cumulative impact of these failures violated his
rights under the Sixth and Fourteenth Amendments.
(Id. at 71-72.) In support of these claims,
Petitioner requests discovery, expansion of the record, and
an evidentiary hearing.
parties agree that Petitioner adequately raised Claim 1A in
state court (Docs. 22 at 48, 29 at 36), and that Claims 1B
and 1C were not raised in state court and are therefore
procedurally defaulted (Docs. 22 at 75-76, 29 at 56, 58). The
parties further do not dispute that Petitioner raised Claim
1D in his PCR petition but failed to appeal its denial by
including it in his petition for review to the Arizona
Supreme Court. (Docs. 22 at 79, 29 at 62.) The parties
dispute, however, whether Petitioner's failure to appeal
Claim 1D renders the claim procedurally defaulted.
forth below, the Court finds that Claim 1A is exhausted but
without merit, and Claims 1B, 1C, and 1D are procedurally
defaulted. Claim 1 is therefore denied.
alleges that his trial counsel failed to pursue and present
adequate mitigation evidence during his trial. (Doc. 22 at
48-75.) As this claim was raised and decided on the merits in
state court, Petitioner is entitled to evidentiary
development only if his claim satisfies § 2254(d).
See Pinholster, 563 U.S. at 180-81; Henry,
720 F.3d at 1093 n.15. Petitioner must also establish that he
did not fail to develop evidence related to this claim in
state court under § 2254(e). See Rhoades, 598
F.3d at 517.
alleges that the PCR court unreasonably applied clearly
established federal law under § 2254(d)(1) by (1)
holding that trial counsel's decisions were “sound
trial strategy” without first assessing whether
counsel's decisions were made after an adequate
investigation (Doc. 22 at 54-56), and (2) failing “to
assess the sufficiency of mitigating evidence, as a whole,
weighed against the weak aggravating factors”
(id. at 56-57).
Petitioner is correct that counsel cannot choose a sound
mitigation strategy without initially performing a reasonable
mitigation investigation. Strickland, 466 U.S. at
691 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.”); Wiggins
v. Smith, 539 U.S. 510, 523 (2003) (“In assessing
counsel's investigation, we must conduct an objective
review of their performance, measured for
‘reasonableness under prevailing professional
norms,' . . . which includes a context-dependent
consideration of the challenged conduct as seen ‘from
counsel's perspective at the time[.]'”
(citations omitted)). Contrary to Petitioner's arguments,
however, the PCR court did appropriately address the
reasonableness of the scope of his counsels' mitigation
investigation as well as his counsels' decisions
regarding whether and how to use the mitigating evidence they
obtained through their investigation.
court first addressed Petitioner's mitigation
investigation claim by detailing the investigative efforts of
Petitioner's trial team based on the record before it.
(PCR Ruling at 19-20.) It then proceeded to evaluate the
decisions trial counsel made based on their investigation.
(Id. at 20.) The court found that Petitioner's
trial counsel “conducted a mitigation investigation,
” including by securing a neuropsychological assessment
performed by Dr. Kiran Amin, and by assessing
Petitioner's “drug use, intelligence . . ., and his
dysfunctional family background.” (Id. at 21,
25.) The court ultimately concluded that counsel's
actions were reasonable and, addressing prejudice, that
counsel's performance did not call into question the
fairness of the result. (Id.)
analysis is consistent with Strickland and is not a
misapplication of clearly established federal law under
§ 2254(d)(1). See Strickland, 466 U.S. at 686
(“The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
Petitioner alleges that the state court failed to apply
clearly established federal law by declining to assess the
mitigation as a whole compared to the aggravating factors.
The Court disagrees.
decision, the PCR court stated:
The proper prejudice standard for evaluating a claim of
[ineffective assistance of counsel] in the context of the
penalty phase mitigation investigation requires a probing and
fact-specific analysis that considers the totality of the
available mitigation evidence, both that adduced at trial and
the evidence adduced in the post-conviction proceedings, in
order to assess whether there is a reasonable probability
that defendant would have received a different sentence after
a constitutionally sufficient mitigation investigation.
Sears v. Upton, 130 S.Ct. 3259 (2010).
(PCR Ruling at 19.) This is consistent with the federal
authority cited by Petitioner. See e.g.,
Wiggins, 539 U.S. at 534 (“In assessing
prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence.”). (Doc. 22
at 56.) After citing this standard, the PCR court proceeded
to evaluate all of the mitigating evidence in the record and
ultimately concluded that even the cumulative effect of trial
counsel's alleged failure to investigate and present
mitigation evidence did not ...