Whitehead v. Ryan

          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 ...