United States District Court, D. Arizona
ORDER
Honorable Lynnette C. Kimrnins United States Magistrate Judge
Petitioner
Cassius Whitehead has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. Before the Court
are the Petition (Doc. 1), Respondents' Answer (Doc. 20),
and Petitioner's Reply and accompanying declaration
(Docs. 29, 30). The parties have consented to Magistrate
Judge jurisdiction. (Doc. 34.)
FACTUAL
AND PROCEDURAL BACKGROUND
Whitehead
was convicted in the Pima County Superior Court on four
counts of armed robbery, five counts of kidnapping, ten
counts of aggravated assault, and five counts of attempted
first-degree murder. (Doc. 20, Ex. U.) The trial judge
sentenced Whitehead to prison terms totaling 118 years.
(Id.)
The
Arizona Court of Appeals summarized the facts in support of
Whitehead's convictions:
Whitehead entered a bank wearing a ski mask and gloves. He
pointed a gun at bank employees and ordered them to give him
cash from the bank vault and cash drawers. Some of these
items included tracking devices. A key from the bank also
fell in the bag. Whitehead left the bank in a car that police
officers found abandoned about ten minutes later.
Using the tracking system from the bank, officers found
Whitehead riding a bicycle away from where a car matching the
description of the one driven by the bank robber was parked.
The officers saw Whitehead get off the bicycle, pull a gun
from his bag and jump over a wall into a residential area.
Soon after, he began firing at the officers, injuring two of
them. Whitehead then began running away, and an officer shot
him, stopping him.
(Id., Ex. A at 2.)
Whitehead
appealed and the Arizona Court of Appeals affirmed his
convictions and sentences. (Id., Exs. A, E.)
Whitehead's Petition for Review to the Arizona Supreme
Court was denied. (Id., Exs. B, C.) Whitehead filed
a Notice of Post-conviction Relief (PCR). (Id., Ex.
V.) He then filed a pro se PCR petition, which he
subsequently amended. (Id., Exs. W, X.) After a
multi-day evidentiary hearing, the PCR court denied relief.
(Id., Ex. Y.) Whitehead appealed and the Arizona
Court of Appeals affirmed, adopting the PCR court's
ruling. (Id., Exs. Z, AA.)
DISCUSSION
Whitehead
raises six claims. (Doc. 1.) Without conceding the point,
Respondents do not contend that Whitehead failed to exhaust
any of the claims. (Doc. 20 at 11.) Thus, the Court will
review all six claims on the merits.
Legal
Standards for Relief under the AEDPA
The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
created a “highly deferential standard for evaluating
state-court rulings' . . . demand[ing] that state-court
decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333
n. 7 (1997)). Under the AEDPA, a petitioner is not entitled
to habeas relief on any claim “adjudicated on the
merits” by the state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The last relevant state court
decision is the last reasoned state decision regarding a
claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th
Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797,
803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d
657, 664 (9th Cir. 2005).
“The
threshold test under AEDPA is whether [the petitioner] seeks
to apply a rule of law that was clearly established at the
time his state-court conviction became final.”
Williams v. Taylor, 529 U.S. 362, 390 (2000).
Therefore, to assess a claim under subsection (d)(1), the
Court must first identify the “clearly established
Federal law, ” if any, that governs the sufficiency of
the claims on habeas review. “Clearly
established” federal law consists of the holdings of
the Supreme Court at the time the petitioner's state
court conviction became final. Williams, 529 U.S. at
365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).
The
Supreme Court has provided guidance in applying each prong of
§ 2254(d)(1). The Court has explained that a state court
decision is “contrary to” the Supreme Court's
clearly established precedents if the decision applies a rule
that contradicts the governing law set forth in those
precedents, thereby reaching a conclusion opposite to that
reached by the Supreme Court on a matter of law, or if it
confronts a set of facts that is materially indistinguishable
from a decision of the Supreme Court but reaches a different
result. Williams, 529 U.S. at 405-06; see Early
v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the
“unreasonable application” prong of §
2254(d)(1), a federal habeas court may grant relief where a
state court “identifies the correct governing legal
rule from [the Supreme] Court's cases but unreasonably
applies it to the facts of the particular . . . case”
or “unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should
not apply or unreasonably refuses to extend the principle to
a new context where it should apply.”
Williams, 529 U.S. at 407. For a federal court to
find a state court's application of Supreme Court
precedent “unreasonable, ” the petitioner must
show that the state court's decision was not merely
incorrect or erroneous, but “objectively
unreasonable.” Id. at 409; Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); Visciotti,
537 U.S. at 25. “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, 131 S.Ct. 770, 786 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
Under
the standard set forth in § 2254(d)(2), habeas relief is
available only if the state court decision was based on an
unreasonable determination of the facts. Miller-El v.
Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In
considering a challenge under § 2254(d)(2), state court
factual determinations are presumed to be correct, and a
petitioner bears the “burden of rebutting this
presumption by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at
473-74; Miller-El II, 545 U.S. at 240.
Claim
1
Whitehead
alleges trial counsel was ineffective for the following
reasons: (a) counsel did not conduct sufficient voir dire or
strike jurors with law enforcement backgrounds; (b) Whitehead
was denied unrestricted access to counsel; (c) counsel failed
to preserve a Batson challenge based on religious
affiliation; (d) counsel failed to conduct an adequate
investigation; and (e) counsel failed to communicate and
collaborate with co-counsel. Whitehead was represented at
trial by Kyle Ipson as lead counsel and Somer Chyz. All of
the IAC claims are based on Ipson's performance.
Standard
for IAC Claims
IAC
claims are governed by Strickland v. Washington, 466
U.S. 668 (1984). 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. Id. 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.” Id. at 689. Thus, to satisfy
Strickland's first prong, deficient performance,
a defendant must overcome “the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Id.
A
petitioner must affirmatively prove prejudice. Id.
at 693. To demonstrate prejudice, he “must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694.
a.
Jury Selection
Whitehead
alleges counsel should have explored the law enforcement
connections of jurors Glenn, Sonntag, Fancher, and Wakefield,
in light of the victims being police officers.
During
jury selection, juror Wakefield stated that she worked for
the Attorney General's office as a legal assistant in the
civil division and that the agency represented corrections
officers and probation officers. (RT 11/3/08 at 116-17,
175.)[1] Juror Fancher stated that her son-in-law
was with the Pima County Sheriff but that would not influence
her and she had no doubt she could be fair to the defendant.
(RT 11/4/08 at 35-36, 172.) In ruling on this claim, the PCR
court noted that jurors Fancher and Wakefield were
alternates;[2] therefore, Petitioner was not prejudiced
by their presence on his jury. (Doc. 20, Ex. Y at 4.) Because
they did not serve on the jury that deliberated, there is not
a reasonable likelihood Whitehead would not have been
convicted if counsel had challenged these jurors for cause.
Juror
Sonntag disclosed that he had worked with potential witness
Donald Bley for 15 years but stated that would not cause a
problem in evaluating his testimony.[3] (RT 11/4/08 at 92-93.) As a
contract officer for Raytheon he had contact with federal
agents but had no doubt he could be fair to the defendant.
(Id. at 102.) Also, he had taken business law
classes. (Id. at 147-48.) During voir dire, juror
Glenn stated that he owned “a lot” of guns and
shooting was his hobby. (RT 11/4/08 at 131, 154.) He had been
employed by the Arizona Department of Corrections for 11
years. (Id. at 135-36, 154.) He had knowledge of the
law in relation to corrections work and a brother-in-law that
was a district attorney out of state. (Id. at 148,
165-66.) When asked by the Court, juror Glenn stated that he
could be fair to the defendant and the prosecution and make a
decision based on the evidence. (Id. at 157.)
Whitehead
testified during the Rule 32 Evidentiary Hearing that he told
counsel Chyz that he had a problem with Glenn and he wanted
him off the jury.[4] (RT 3/29/11 at 113.) “Co-counsel
Somer Chyz testified that the Petitioner did have
reservations about one juror (Glenn) because of his job at
the Arizona Department of Corrections, but does not recall a
discussion about striking the juror.” (Doc. 20, Ex. Y
at 4.) Counsel Ipson did not remember a conversation about
Glenn. (Id.) The PCR Court denied this claim finding
no prejudice based on jury selection:
Each juror was questioned during voir dire concerning whether
they could be fair and impartial to the defendant and the
prosecution, and would have been removed from the panel if
they could not be impartial. The Petitioner is unable to
provide any evidence from which this Court can conclude that
“but for” these jurors, Petitioner would have
been acquitted.
(Id. at 4.)
Whitehead's
argument amounts to a contention that Ipson should have
questioned Sonntag and Glenn further about their law
enforcement connections. However, Whitehead does not
articulate any necessary follow-up questions that were not
asked of Glenn or Sonntag. Most critically, both jurors were
asked if they could be fair to the defendant, despite their
backgrounds, and they both assured the Court that they could.
Even if
counsel was deficient for failing to communicate with
Whitehead during the voir dire process, there is no evidence
that Glenn or Sonntag were biased or that the outcome of the
proceeding would have been different if they had been struck.
The PCR court's denial of this claim was not objectively
unreasonable.
b.
Access to Counsel
Whitehead
alleges he did not have free access to counsel Ipson;
specifically, that counsel did not consult with him during
jury selection. Whitehead frames this claim as one of
complete denial of counsel. Under United States v.
Cronic, 466 U.S. 648, 659 (1984), prejudice will be
presumed if a defendant is denied counsel at a critical stage
of the proceedings. This standard is not applicable here
because Whitehead's counsel conducted voir dire and
peremptory strikes and co-counsel Chyz communicated with
Whitehead during that process.[5]
In
denying Whitehead's access to counsel claim, the PCR
court stated:
Jail visitation records indicate that Trial Counsel and his
investigators met with Petitioner after Trial Counsel's
appointment, and this communication was before and included
the actual trial. At the evidentiary hearing, Trial Counsel
did acknowledge his visits were short in comparison to his
investigator's visits with the Petitioner, but the jail
records and testimony by Trial Counsel do not establish there
was a failure to communicate with Petitioner.
(Doc. 20, Ex. Y at 3.) Here, Whitehead is not alleging a
general lack of access as addressed by the PCR court. He
argues only that he was denied access to counsel during jury
selection. As addressed above in subclaim (a), Petitioner has
failed to establish prejudice arising from counsel's
conduct during jury selection. For the same reason, his
access to counsel claim fails.
c.
Batson Objection on Religious Grounds
Whitehead
alleges counsel was ineffective for failing to preserve a
Batson challenge to juror L. based on her religious
affiliation. On appeal, the court found that counsel had not
preserved a challenge based on religious affiliation. (Doc.
20, Ex. A at 10.) The Court went on to note that, although
striking a juror based on religious affiliation was improper
under state law, the prosecutor's strike was based on his
belief that the juror was confrontational not on the
impermissible ground of religion. (Id. at 11.) The
PCR court similarly concluded that Whitehead suffered no
prejudice by counsel's actions because the strike of
juror L. was not impermissible. (Doc. 20, Ex. Y at 5.)
Central
to resolution of this claim is the merit of the underlying
state law Batson challenge, [6] which was addressed on
appeal and by the PCR court. As a general matter, a federal
court will not review a state court's determinations on
state law. See Estelle v. McGuire, 502 U.S. 62, 67
(1991) (“it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions”); Johnson v. Sublett, 63 F.3d 926,
931 (9th Cir. 1995). Under the AEDPA, the Court assesses
whether the PCR court's decision, that trial counsel was
not ineffective, was an unreasonable application of Supreme
Court law to the facts. The appellate court determined that a
Batson challenge based on religious affiliation
would not have been successful. Thus, Whitehead cannot
establish prejudice because there is not a reasonable
probability that he would have won relief if trial counsel
had preserved the claim for appeal. The PCR court's
decision-that Petitioner's trial counsel was not
ineffective for failing to preserve the Batson challenge-was
not an unreasonable application of Strickland to the
facts.
d.
Pretrial Investigation and Preparation
Whitehead
argues that Ipson's pretrial preparation was inadequate,
as evidenced by: (i) failing to timely provide a notice of
defenses to the prosecution along with a witness and exhibit
list, and failure to file with the court a joint pretrial
statement; (ii) failing to timely investigate and provide
factual support for the “dual-defense”
(misidentification and third-party culpability) including
eyewitnesses, medical personnel and first responders, and TPD
officers; (iii) failing to present medical records and a
medical expert; (iv) failing to retain a ballistics expert;
(v) failing to retain and prepare an ID expert prior to
trial; and (vi) not calling the witnesses he expressed an
intent to call.
i.
Pretrial Filings
Whitehead
alleges that counsel failed to timely provide a notice of
defenses and witness and exhibit lists, and failed to file a
joint pretrial statement. The PCR court found counsel's
conduct unreasonable - “[t]rial Counsel was late in his
disclosure of witnesses, failed to obtain Board of Inquiry
transcripts, and failed to file a joint pretrial
statement.” (Doc. 20, Ex. Y at 3.) However, the court
concluded that Whitehead was not prejudiced by counsel's
omissions. (Id.) With respect to counsel's
failure to obtain Board of Inquiry transcripts, the PCR court
found that Petitioner “is unable to point to a
particular line of questioning or discrepancies between the
testimony at trial and the transcripts which undermine the
credibility of police officer testimony.” (Doc. 20, Ex.
Y at 6.) Therefore, the PCR court found no prejudice arising
from counsel's actions on cross-examination.
(Id.)
The
Court finds these rulings were not objectively unreasonable.
The trial court did not preclude the defense from introducing
any evidence due to late disclosures. Whitehead fails to
identify any prejudice arising from counsel's omissions.
Therefore, this subclaim is without merit.
ii.
Investigation
Whitehead
argues that counsel conducted an untimely and inadequate
investigation. After a multi-day evidentiary hearing, the PCR
court addressed Whitehead's claim that counsel conducted
a deficient investigation:
Trial counsel's testimony was that he relied on the
interviews conducted prior to being assigned the case, using
interviews conducted by the State and Defendant's
previous attorney to determine whether a witness would
provide favorable testimony. At an evidentiary hearing on
March 28, 2011, Trial Counsel testified that his
investigators attempted to contact witnesses who lived in an
apartment complex near the scene of the shooting, but found
that these witnesses no longer lived in the complex. Trial
Counsel in his testimony also told of his frustration with
the Petitioner who told counsel that he knew who committed
the crimes, but would not disclose this person's name.
At the March 29, 2011 Evidentiary Hearing, Trial Counsel
further testified that there were at least three visits to
the scene of the crime to attempt to interview witnesses, he
reviewed nine boxes of material, and investigated several
potential defenses. Trial Counsel testified about his attempt
to connect this crime to another robbery in the area, but
upon further investigation found the description of the
unmasked ...