United States District Court, D. Arizona
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.
3.
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