Ortloff v. Chandler

          ORDER

          Susan R. Bolton United States District Judge

         The Court now considers Petitioner's Second Amended Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (Sec. Am. Pet. (“SAP”)) (Doc. 12). On September 28, 2018, Magistrate Judge Michelle H. Burns issued a Report and Recommendation (“R. & R.”) (Doc. 107), recommending that the Petition be denied and dismissed with prejudice. On October 15, 2018, Petitioner filed his Objections. (Doc. 110, Obj. to R. & R. (“Obj.”).)

         I. BACKGROUND

         The facts of this case were summarized in this Court's Order dated March 2, 2018. (See Mar. 2, 2018 Order at 7.)^[1] On October 25, 2016, Petitioner filed his Petition. (See SAP.) On December 7, 2016, Respondents filed their Answer, limited to affirmative defenses, arguing that the Petition was not timely filed and did not relate back to the filing date of Petitioner's initial petition. (Doc. 21, 2016 Ans.) On August 18, 2017, Magistrate Judge David K. Duncan filed a Report and Recommendation, recommending, in part, that the Petition be found timely and that Respondents be required to answer each ground in the Petition. (Doc. 33, 2017 R. & R.) On March 2, 2018, this Court overruled Respondents' objections to that Report and Recommendation and ordered Respondents to individually answer each claim of the Petition (Doc. 62, Mar. 2, 2018 Order.) On April 2, 2018, Respondents filed their second Answer, and on June 7, 2018, Petitioner filed his Reply. (Doc. 63, Ans.; Doc. 71, Reply.) On August 10, 2018, Magistrate Judge Deborah M. Fine ordered Respondents to file necessary transcripts associated with Petitioner's underlying criminal trial. (Doc. 95, Aug. 10, 2018 Order.) On August 31, 2018, Judge Fine issued an Order to Show Cause, ordering Respondents to show cause as to why Respondents' filed incomplete transcripts following the August 10, 2018 Order. (Doc. 100, Order to Show Cause.) On the same day, Respondents filed the missing transcripts. (Doc. 102, Notice of Filing Trs.) On September 5, 2018, this matter was referred to Judge Burns. (Doc. 105, Sept. 5, 2018 Order.) Judge Burns concluded that Petitioner failed to show that: (1) Grounds 1 through 26 and 28 through 30 were excused from default, and (2) the state courts' adjudication of the claims set forth in Grounds 27 and 31 through 48 entitled Petitioner to relief under § 2254(d). (See R. & R. at 45-46.)

         II. LEGAL FRAMEWORK

         A district court “must make a de novo determination of those portions of the report . . . to which objection is made, ” and “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)(C). A court need review only those portions objected to by a party, meaning a court can adopt without further review all portions not objected to. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For those portions of a Magistrate Judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress . . . intended to require a district judge to review a magistrate's report to which no objections are filed.”).

         A. Exhaustion of Remedies & Procedural Default

         A state prisoner must properly exhaust all remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995). In Arizona, state prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's “established appellate review processes” consist of a direct appeal and a post-conviction relief (“PCR”) proceeding. Ariz. R. Crim. P. 31, 32; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).

         To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory underlying the claim. Baldwin v. Reese, 541 U.S. 27, 32- 33 (2004). A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); see also Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”). An implied procedural bar exists if a claim was not fairly presented in state court, and state court remedies are no longer available to the petitioner. Teague v. Lane, 489 U.S. 288, 289-99 (1989).

         A federal court may review the merits of a procedurally defaulted claim if the petitioner: (1) demonstrates that failure to consider the merits of that claim will result in a “fundamental miscarriage of justice, ” or (2) establishes “cause” for his noncompliance and actual prejudice. Schlup v. Delo, 513 U.S. 298, 321 (1995). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must establish that this “objective factor external to the defense impeded [his] efforts to comply with the [s]tate's procedural rule.” Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citation and internal quotation marks omitted). To establish prejudice, a “petitioner must show ‘not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

         The “fundamental miscarriage of justice” exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). A positive assertion of actual innocence requires a showing of factual innocence with respect to the crime at issue-not mere legal insufficiency. Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). A “petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted). Unsurprisingly, successful demonstrations are extremely rare. Schlup, 513 U.S. at 324; see Shumway v. Payne, 222 F.3d 982, 990 (9th Cir. 2000).

         B. Ineffective Assistance of Counsel

         To prevail on an ineffective assistance claim, a movant must show that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The “objective reasonableness standard” does not demand best adherence to best practices-or even adherence to common custom. See Harrington v. Richter, 562 U.S. 86, 105 (2011). With respect to the second prong, a movant 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Recognizing the temptation for defendants to second-guess the efficacy of counsel's representation following an unfavorable ruling, Strickland mandates a strong presumption of both adequate assistance and the exercise of reasonable professional judgement on the part of counsel. Id. at 690; see Cullen v. Pinholster, 563 U.S. 170, 189 (2011). And although the Strickland test is dual-pronged, there is no requirement that a court consider either prong first. Strickland, 466 U.S. at 697; see also LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (noting that courts need not look at both deficiency and prejudice if petitioner cannot establish one or the other).

         Finally, a petitioner is entitled to relief only if the state court's denial of his ineffective assistance claim was “‘contrary to, or involved an unreasonable application of,' Strickland, or it rested ‘on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.'” Porter v. McCollum, 558 U.S. 30, 39 (2009) (quoting 28 U.S.C. § 2254(d)). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000). A state court's decision is only unreasonable if the federal habeas court determines that no reasonable jurist could disagree that decision was inconsistent with established Supreme Court precedent. See Harrington, 562 U.S. at 102; Mann v. Ryan, 828 F.3d 1143, 1151-52 (9th Cir. 2016).

         C. Standard of Review for 28 U.S.C. § 2254

         Petitioner brings this action pursuant to 28 U.S.C. § 2254 (“§ 2254”). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner is not entitled to habeas relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established [f]ederal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” § 2254(d). “An unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410. The standard for evaluating state court rulings is highly deferential and requires that state court rulings be given the benefit of the doubt. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The standard is “difficult to meet.” Harrington, 562 U.S. at 102.

         With respect to § 2254(d)(1), a court first identifies the “clearly established [f]ederal law, ” if any, that governs the sufficiency of the claims on habeas review. A petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. With respect to § 2254(d)(2), a state-court decision based on a “factual determination is not unreasonable merely because the federal court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); see also Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (explaining that before a federal habeas court can determine that the state-court factfinding process was materially defective, it must be confident that no appellate court aware of the same defect would be reasonable in holding that the process was adequate), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). The prisoner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). And while the Supreme Court has not delineated the precise relationship between § 2254(d)(2) and § 2254(e)(1), it has emphasized its holding in Wood, namely, that it is the unreasonableness of the application of the law to the facts that underpins the relationship between the two subsections. 558 U.S. at 301.

         III. DISCUSSION

         Petitioner alleges 48 grounds for relief. (See generally SAP.) In Grounds 1 through 30, Petitioner alleges prosecutorial misconduct. (Id.) With the exception of Ground 27, Judge Burns found that Grounds 1 through 30 are technically exhausted but procedurally defaulted.^[2] (R. & R. at 10.) In Grounds 31 through 46, Petitioner alleges ineffective assistance of counsel. (SAP, Attach. 2 at 7-30.) In Ground 47, Petitioner alleges that cumulative error rendered his trial fundamentally unfair, and in Ground 48, Petitioner asserts actual innocence. (Id. at 31-32.) Petitioner exhausted Grounds 31 through 48. (R. & R. at 10.) Petitioner requests relief, including that the Court hold each of his grounds is meritorious, that his trial and PCR proceedings were fundamentally unfair, that he is actually innocent, and that each conviction be reversed “with prejudice.” (SAP, Attach. 2 at 33.)

         A. Prosecutorial Misconduct

         1. Ground 1

         In Ground 1, Petitioner contends that “the prosecutor suborned perjury and knowingly used false testimony in [a] calculated strategy of deceit to conceal the theft of Prisoner's handwritten notes by a prison snitch, which were then used to fabricate a murder confession, in violation of the Fourteenth Amendment.” (SAP at 8.) Petitioner claims that the prosecutor, who lacked physical evidence linking Petitioner to Kathleen Smith's murder, built the case around Petitioner's alleged confession to another inmate, Fredric Tokars. (Id. at 9-13.) Respondents contend that Petitioner failed to raise this claim on direct appeal, only raising it for the first time in his PCR and habeas petitions. (Ans. at 7-8.) In his direct appeal to the Arizona Court of Appeals, Petitioner argued that prosecutorial misconduct violated his rights to due process and a fair trial. (Ans., Attach. 1, Ex. A at 42- 109.) Yet the only of mention of Mr. Tokars was in connection with claims of evidentiary ruling errors by the trial court. (Id. at 97-103, 106-08.) Petitioner's arguments concerned allegations that the prosecutor used “inconsistent theories and evidence” with respect to a footprint found outside Ms. Smith's condominium. (Id. at 43-55.) In his PCR petition, however, Petitioner asserted a prosecutorial misconduct claim alleging that the prosecutor knowingly introduced the allegedly false confession made by Petitioner to Mr. Tokars. (Id. at 4-5.)

         In dismissing his PCR petition, the superior court referred to Petitioner's claims of prosecutorial misconduct raised on direct appeal and adjudicated by the court of appeals. (Ans., Attach. 2, Ex. C (July 5, 2013 Superior Court Order) at 4-5.) The superior court's review of the record failed to disclose the requisite “pronounced and persistent” intentional prosecutorial misconduct. (Id. at 49.) That court ultimately found “no abuse of discretion by the trial court in denying the motion for a new trial based on allegations of prosecutorial misconduct, ” and held that Petitioner was “precluded from seeking [PCR] on grounds that were adjudicated in a prior appeal.” (Id. (citing Ariz. R. Crim. P. 32.2(a)(2); State v. Curtis, 912 P.2d 1341, 1342 (Ariz. 1995)).

         Rule 32 of the Arizona Rules of Criminal Procedure governs “other post-conviction relief.” Rule 32.2(a)(1) precludes relief on any ground “[r]aisable on direct appeal.” The Report and Recommendation found that any claim of prosecutorial misconduct not raised by Petitioner in his direct appeal when it could have been, was technically exhausted and therefore procedurally defaulted pursuant to Rule 32.2(a)(1). (R. & R. at 13.) The Court agrees.^[3] Petitioner's claim is subject to an implied procedural bar because it was not fairly presented in state court and no state remedies remain available to him. Teague, 489 U.S. at 289-99.^[4] This Court, therefore, may only review Petitioner's claim if he demonstrates either actual innocence or cause for the default and resulting prejudice. § 2254(c)(2)(B); Schlup, 513 U.S. at 321. Petitioner has not done so.

         Despite Petitioner's exhortations in both his Objections and Reply, he has not identified an “objective factor external to the defense” that precluded his compliance with Arizona procedural rules. Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). Because Petitioner cannot show actual cause, there is no need to consider whether he suffered actual prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982) (“Since we conclude that these respondents lacked cause for their default, we do not consider whether they also suffered actual prejudice.”). As to Petitioner's argument that he was unable to develop his claims due to the denial of various discovery motions, Petitioner does not proffer the requisite new, reliable evidence. See Schlup, 513 U.S. at 324. Instead, Petitioner merely argues that he was unable to “meaningfully develop his grounds, which included seeking expert and investigative assistance.” (Reply at 4.; Obj. at 3.) Yet such a speculative argument does not create an actual innocence claim. See Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt.”).

         Finally, Petitioner fails to offer anything to suggest that Rule 32.2(a) is not an adequate and independent state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. And, significantly, federal courts have routinely held that Rule 32.2(a) is an adequate and independent state ground. See, e.g., Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014) (“Arizona's waiver rules are independent and adequate bases for denying relief.”). Petitioner's objections to Ground 1 are overruled, and the Report and Recommendation is adopted with respect to Ground 1.

         2. Grounds 2-4, 6-13, and 15-30.

         In his Reply, Petitioner contends that Grounds 2 through 4, 6 through 13, and 15 through 30 are each similarly procedurally positioned to Ground 1.^[5] (Reply at 2-3.) While Petitioner agrees with Respondents, that each of these claims was not raised on direct appeal, he argues that the claims are not procedurally defaulted because they were not adjudicated on prior appeal. As discussed above with respect to Ground 1, each of these claims is subject to an implied procedural bar, reviewable by a federal habeas court only if Petitioner can demonstrate either Schlup factor. 513 U.S. at 321. Petitioner advances the same objections to the Report and Recommendation's conclusions with respect to Grounds 1 through 30. (See Obj. at 3-5.) For the same reasons discussed above, the Court is not persuaded by Petitioner's objections to Grounds 2 through 4, 6 through 13, and 15 through 30. Petitioner's objections are overruled, and the Report and Recommendation is adopted with respect to these Grounds.

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