Garcia v. Ryan

         DEATH PENALTY CASE

          ORDER

          David G. Campbell, Senior United States District Judge

         Before the Court is Petitioner Alfredo Lucero Garcia's motion for evidentiary development. (Doc. 40.)^[1] The motion is fully briefed. (Docs. 46, 47.) For the reasons stated below, the motion will be denied.

         I. BACKGROUND

         A jury 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 sentence:

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.

         Petitioner 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.

         II. APPLICABLE LAW

         Federal 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.

         A. Exhaustion and Procedural Default

          The 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).

         A claim 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).

         In 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).

         Procedural 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.

         For 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).

         The 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).

         B. Evidentiary Development

         Under 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 is limited.

         In 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).

         To 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.

         1. Discovery

         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(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).

         2. Evidentiary Hearing

         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 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).

         Absent 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 Cir. 2005).

         If the 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 offense.” Id.

         Moreover, 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. 1992).

         3. 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).

         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 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 § 2254(e)(2).

         III. ANALYSIS

         Petitioner 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 as follows.

         A. Ineffective Assistance of Counsel Claims

         Petitioner 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.

         For 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.

         The 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 689.

         With 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.” Id.

         1. Claim 1

         In 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.

         The 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.

         As set 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.

         a. Claim 1A

         Petitioner 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.

         Petitioner 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).

         First, 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.

         The PCR 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.)^[2] 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.)

         This 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 result.”).

         Second, 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.

         In its 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 ...