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Navarro v. Ryan

United States District Court, D. Arizona

December 19, 2018

Robert Raymond Navarro, Petitioner,
Charles L. Ryan, Respondent.


          G. Murray Snow, Chief United States District Judge

         Pending before the Court is Petitioner Robert Raymond Navarro's Amended Petition for a Writ of Habeas Corpus (Doc. 7) and the Report and Recommendation (R&R) of Magistrate Judge James F. Metcalf (Doc. 120). Navarro timely filed objections to the R&R (Doc. 123). See 28 U.S.C. § 636(b)(1). For the following reasons the R&R is adopted (with modifications as outlined below) and Navarro's Petition is dismissed.


         Robert Raymond Navarro was convicted in Arizona state court of aggravated assault, a class 3 dangerous felony. The conviction stemmed from a confrontation between Navarro and a bouncer in a bar during which Navarro threatened the bouncer with a knife. At the sentencing phase of the trial, the court conducted a hearing on Navarro's prior criminal convictions and found that two of them qualified as serious felony convictions- so he was sentenced to life with the possibility of parole after 25 years under Arizona's three-strikes law. Navarro appealed his conviction, arguing that the trial court erred by not instructing the jurors on the lesser included offense of disorderly conduct. The Arizona Court of Appeals affirmed, holding that any error was invited because Navarro had requested that the instruction be withdrawn.

         Navarro then filed his first petition for post-conviction relief (“PCR”). The court concluded that his claims were meritless and dismissed his petition. Navarro then filed a second PCR petition. This time he included a claim of actual innocence supported by allegations concerning misidentification, mistaking jewelry for a knife, and potential impeachment of the victim based on his criminal history. The PCR court rejected Navarro's arguments.

         Navarro filed this federal habeas action shortly before his second state PCR petition. Navarro subsequently amended his petition to assert a single ineffective assistance of counsel (“IAC”) claim based on four grounds. First, Navarro alleges that his trial counsel failed to investigate and present evidence that the knife was nothing more than Navarro's jewelry. Second, he alleges that trial counsel failed to emphasize possible misidentification. Third, trial counsel allegedly failed to impeach the victim's credibility with his criminal history and an associated motive to give false testimony. Finally, Navarro alleges that trial counsel failed to overrule Navarro's own instructions and insist that the court submit to the jury an instruction on the lesser included offense of disorderly conduct.

         The Magistrate Judge's first R&R recommended that Navarro's petition be denied. (Doc. 72). The Magistrate Judge found that Navarro's claims were procedurally defaulted. He further determined that although Navarro may be able to demonstrate cause to excuse the procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), any evidence from a Martinez-cause hearing could not be used to determine the merits of Navarro's underlying IAC claim because of the limits placed on habeas proceedings by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254(e)(2). The Magistrate Judge therefore concluded that the most efficient way to dispose of Navarro's petition was to analyze the petition's merits on the limited record from the state court.

         This Court declined the first R&R because under Ninth Circuit law, “if [a petitioner] can show cause and prejudice to excuse a procedural default, AEDPA no longer applies and a federal court may hear [the] new claim de novo.” (Doc. 93 (quoting Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (quotation marks omitted)). This Court therefore concluded that Navarro was “not absolutely precluded from developing evidence in a cause hearing that also may be used as grounds for relief if cause and prejudice are sufficiently established.” (Doc. 93 at 4). This Court remanded the petition to the Magistrate Judge with instructions to determine “whether additional specified discovery” would help Navarro establish his IAC claim. (Doc. 93 at 5).

         However, this Court also noted that “[i]t is possible that even applying the appropriate standard, the Magistrate Judge might still find that some or all of the claims in the petition are not colorable.” (Id.). Further, this Court instructed that

should Magistrate Judge Metcalf determine that some or all of the claims are colorable, he will need to determine, pursuant to Martinez, whether Petitioner Navarro can establish cause and prejudice to excuse his default. In doing so, Magistrate Judge Metcalf will need to consider whether it is appropriate to allow the supplementation of the factual record.


         On remand, the Magistrate Judge granted a consolidated evidentiary hearing for all four grounds of Navarro's IAC claim. (Doc. 94). Respondents moved for reconsideration of that decision, however, and the Magistrate Judge granted the motion. (Doc. 101). With regards to Ground 1, the Magistrate Judge concluded that Navarro could supplement the existing record through an evidentiary hearing. (Doc. 101 at 16, 22). However, to ensure an appropriate scope for that hearing, the Magistrate Judge ordered Petitioner to request affidavits from Petitioner's trial counsel and investigator outlining the investigation they had undertaken before trial regarding the jewelry issue and offering any explanation for why the investigation may not have occurred and why any evidence obtained was not presented at trial. (Id. at 21-22). Regarding Grounds 2-4, the Magistrate Judge concluded that an evidentiary hearing was not warranted on Grounds 2-4. (Id. at 21, 27, 29).

         Navarro objected to that conclusion regarding Grounds 3 and 4. (Doc. 106). This Court overruled Navarro's objections because Navarro did nothing to “indicate how and on what topics an evidentiary hearing would be practically useful in developing evidence that would demonstrate that his prior lawyer failed to investigate the victim's past misconduct and that such failure amounted to ineffective assistance.” (Doc. 113 at 5). “Navarro [also] fail[ed] to identify a single factual issue that he seeks to develop at the evidentiary hearing” with respect to Navarro's IAC claim arising out of his trial counsel's decision to respect his express wishes by foregoing the lesser included offense strategy. (Id.) Thus this Court affirmed the Magistrate Judge's determination that no additional factual development was necessary on grounds 3 and 4. After parties submitted declarations from trial counsel and further briefing regarding Ground 1, the Magistrate Judge determined that no further evidentiary development was warranted on that claim as well. No. parties objected to that ruling, and the time for filing an objection has expired. The Magistrate Judge has now submitted a second R&R. (Doc. 120). It concludes that in Grounds 2, 3, and 4 Petitioner failed to demonstrate IAC because the claim was “insubstantial, i.e., it does not have any merit, or . . . is wholly without factual support, or . . . the attorney in the initial-review collateral proceeding did not perform below constitutional standards.” Martinez v. Ryan, 566 U.S. 1, 15-16 (2012). It further concluded that Navarro's IAC claim based on Ground 1 is substantial and that the procedural default of the claim is excused under Martinez, but that ultimately Navarro can show no prejudice and therefore that claim also fails.


         I. Legal Standards

         This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

         A. Ineffective Assistance of Counsel

         Navarro bears the burden of showing that his trial counsel was ineffective. See Strickland v. Washington, 466 U.S. 668, 686-87 (1984). “Strickland's standard . . . is highly demanding.” Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). To succeed, Navarro must show (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the failure prejudiced him. Strickland, 466 U.S. at 687. Navarro can establish prejudice by showing that there is a “reasonable probability” that the outcome of the proceedings would have been different but for counsel's deficient performance. Id.

         Court's review of the professional judgment of trial counsel is limited by the presumption that the decisions of counsel fall within a wide range of reasonable assistance. Id. at 689-90. Courts should avoid “the distorting effects of hindsight” as much as possible and “evaluate the conduct from counsel's perspective at the time.” Id. at 689. Even if counsel does not substantially investigate every single plausible line of defense, assistance can still be “effective.” Id. at 681.

         B. Martinez v. Ryan

         Martinez v. Ryan established a two-step analysis to determine whether the procedural default of a claim of IAC of trial counsel can be excused because of the ineffectiveness of counsel in post-conviction relief proceedings. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). First, to establish “cause, ” a petitioner must establish that “his counsel in the state post-conviction proceeding was ineffective under the standards of Strickland.” 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). This requires that a petitioner show that post-conviction counsel's performance was deficient and that but for the deficient performance there is a reasonable probability that the post-conviction proceedings would have turned out differently. Clabourne, 745 F.3d at 377. A petitioner must also show “prejudice” by showing that 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.” Id. (quoting Martinez, 566 U.S. at 14). A claim is “substantial” if it meets the standard for the issuance of a certificate of appealability, Martinez, 566 U.S. at 14, that is, “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citations and internal quotation marks omitted).

         Determining whether PCR counsel was ineffective under Strickland requires an analysis of the merits of the underlying IAC claim. Atwood v. Ryan, 870 F.3d 1033, 1059- 60 (9th Cir. 2017) (“In evaluating whether the failure to raise a substantial claim of ineffective assistance of trial counsel in state court resulted from ineffective assistance of state habeas counsel under Strickland, we must evaluate the strength of the prisoner's underlying ineffective assistance of trial counsel claim.”) (emphasis in original). Thus when a claim of trial-counsel ineffectiveness would fail under Strickland, PCR counsel “would not have been deficient for failing to raise it.” Id. at 1060. And “any deficient performance by state habeas counsel would not have been prejudicial, because there would not be a reasonable probability that the result of the post-conviction proceedings would have been different if the meritless claim had been raised.” Id. See also Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“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.”).

         II. Analysis

         A. Objection One

         Navarro objects to the legal standard applied by the Magistrate Judge when deciding whether Grounds 2-4 were colorable. (Doc. 123 at 6). He also objects to various parts of the Magistrate Judge's determinations regarding the merits of the underlying IAC claims.[1]

         1. Ground 2 ...

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