United States District Court, D. Arizona
Alex A. Sernas, Petitioner,
Charles L. Ryan, Attorney General of the State of Arizona, Respondents.
HONORABLE SUSAN R. BOLTON JUDGE
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED SLATES MAGISTRATE JUDGE
Alex Sernas, proceeding pro se, filed a petition
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254 on February 28, 2018. Sernas has paid the filing fee in
this matter. (ECF No. 6). Respondents docketed an answer to
the petition for habeas corpus relief on October 11, 2018
(ECF No. 15 “Answer”), and Sernas docketed a
reply to the Answer on December 12, 2018. (ECF No. 18).
Yavapai County grand jury indictment charged Sernas with one
count of transporting methamphetamine for sale and one count
of possession of methamphetamine paraphernalia. (ECF No. 15-1
Arizona Court of Appeals summarized Sernas' criminal
proceedings as follows:
. . . Based on information from a material informant (MI) and
a subsequent investigation, Yavapai County Sheriff's
officers learned defendant was going to sell methamphetamine
to the MI at the Sunset Point rest area located on Interstate
17 north of Black Canyon City. Officers confronted defendant
and the driver of the truck in which defendant was a
passenger at the rest stop late in the evening of February
10, 2010. A warrantless strip search of defendant
revealed two baggies of methamphetamine weighing a total of
11.8 grams in his sock.
The state charged defendant with one count each of
transportation of a dangerous drug for sale, a class 2
felony, and possession of drug paraphernalia, a class 6
felony. Defendant [through retained counsel] moved pre-trial
to suppress evidence of the drugs arguing the warrantless
search violated his rights under the Fourth Amendment. The
court held an evidentiary hearing and denied defendant's
motion. The court reasoned that the inevitable discovery
exception to the warrant requirement applied because law
enforcement would have found the drugs when defendant was
booked into jail after his arrest. See State v.
Paxton, 186 Ariz. 580, 584, 925 P.2d 721, 725 (App.
1996) (“Evidence obtained in violation of the Fourth
Amendment need not be suppressed when that evidence would
inevitably have been discovered by lawful means.”).
Defendant stipulated to the factual bases of the charged
offenses' elements and raised entrapment as his defense
at trial. The jury found defendant guilty as charged, and,
for sentencing purposes, the court found defendant had two
prior felony convictions in addition to other aggravating
factors as charged by the state. The court imposed slightly
aggravated concurrent terms of twenty years' imprisonment
for the transportation of a dangerous drug for sale
conviction and four years for the possession of drug
State v. Sernas, 2012 WL 2470009, at *1
(Ariz.Ct.App. 2012). As noted, Sernas admitted his possession
of the methamphetamine and argued a defense of entrapment at
trial and after his conviction, including in his statements
to the probation officer preparing the presentence report.
(ECF No. 15-1 at 73, 75).
timely appealed his conviction and sentence, asserting the
warrantless search leading to the discovery of the
incriminating evidence violated the Fourth Amendment.
Sernas, 2012 WL 2470009, at *1. “He also
raise[d] arguments related to the [trial] court's
reliance on his prior felony convictions and other
aggravating circumstances for sentencing purposes, ”
and challenge the jury instructions. Id. The Arizona
Court of Appeals affirmed Sernas' conviction and sentence
in a decision issued June 19, 2012. Id. at *5.
alia, the appellate court stated:
[Sernas] contends he was not under arrest when the police
searched him and discovered the methamphetamine;
consequently, “the police would not have inevitably
found the packages at the jail because [defendant] would not
have been booked.” We disagree with defendant's
premise that he was not under arrest at the time he was
Id. “Without deciding whether the trial
court's reasoning [in denying the motion to suppress] was
correct, ” the appellate court determined the search
did not violate Sernas' Fourth Amendment rights because,
it concluded, he was under arrest at the time of the search
and there was probable cause for his arrest prior to the
search. Id. at *1-2. Sernas was denied a writ of
certiorari. Sernas v. Arizona, 571 U.S. 917 (2013).
filed a notice of state post-conviction relief pursuant to
Rule 32, Arizona Rules of Criminal Procedure. (ECF No. 15-1
at 170-71). He asserted his trial counsel was ineffective for
failing to challenge the reliability of the canine search in
the suppression proceedings, citing State v.
Sweeney, 227 P.3d 868 (Ariz.Ct.App. 2010). (ECF No. 15-1
at 171). The habeas trial court appointed counsel, but
Sernas' Rule 32 petition was filed pro se. (ECF No. 15-1
at 174, 179-86). In his Rule 32 petition Sernas asserted
there was no probable cause for the search of the vehicle or
his person; his arrest violated his Fourth Amendment rights;
and his trial counsel's performance was
unconstitutionally ineffective, inter alia because
counsel failed to argue Sernas was not read his Miranda
rights “on-scene.” (ECF No. 15-1 at 179-86). He
further alleged his appellate counsel was ineffective.
state habeas trial court, which was also the convicting
court, found “[a]ny issue regarding the trial
Court's ruling regarding the Motion to Suppress”
precluded by Rule 32.2 of the Arizona Rules of Criminal
Procedure, because Sernas either raised the issue or could
have raised the issue in his appeal. (ECF No. 15-1 at 204).
The habeas trial court denied Sernas' ineffective
assistance of counsel claims on the merits. (ECF No. 15-1 at
206). In denying Sernas' claim that his appellate counsel
was ineffective for failing to raise the issue “of the
K-9 reliability and records, ” the trial court stated:
“Defendant admitted to the elements of the crimes,
which was necessary to his original and continuing claim of
entrapment. The reliability and training records of the K-9
are irrelevant to an entrapment defense.”
(Id.). The court also concluded appellate
counsel's performance was not deficient nor prejudicial
because counsel did not file a reply brief, determining a
reply brief “would have served no function.”
sought review of the habeas trial court's decision. (ECF
No. 15-1 at 211). The Arizona Court of Appeals granted review
but denied relief, stating: “. . . the superior court
issued a ruling that clearly identified, fully addressed, and
correctly resolved the claims.” State v.
Sernas, 2016 WL 6962074, at *1 (Ariz.Ct.App. 2016).
Sernas sought a writ of certiorari, which was denied on
January 8, 2018. Sernas v. Arizona, 138 S.Ct. 676
federal habeas petition Sernas asserts there was no probable
cause to arrest him because the MI's information was
unreliable. He further argues the arresting officers had time
to obtain a search warrant, but nonetheless effected a
pretextual canine search and a warrantless strip search, in
violation of his constitutional rights. (ECF No. 1 at 6-12).
He contends he was denied counsel at the time of his arrest
and was not provided his Miranda warnings prior to a
“functional interrogation, ” in violation of his
right to due process. (ECF No. 1 at 13). Sernas also asserts
a claim pursuant to Brady v. Maryland. (ECF No. 1 at
14-15). He further argues he was denied his right to the
effective assistance of counsel throughout his trial,
appellate, and post-conviction proceedings. (ECF No. 1 at
allows the petition is timely and asserts Sernas's claims
are “either not cognizable, unexhausted and
procedurally defaulted without excuse, meritless, or waived
and abandoned.” (ECF No. 15 at 2).
The Anti-Terrorism and Effective Death Penalty Act
Court may not grant a writ of habeas corpus to a state
prisoner on a claim adjudicated on the merits in state court
unless the state court's decision denying the claim was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or “based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
Harrington v. Richter, 562 U.S. 86, 98 (2011),
quoting 28 U.S.C. § 2254(d). See also
Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state
court decision is contrary to federal law if it applied a
rule contradicting the governing law established by United
States Supreme Court opinions, or if it reaches a different
result from that of the Supreme Court on a set of materially
indistinguishable facts. See, e.g.,
Brown v. Payton, 544 U.S. 133, 141 (2005);
Yarborough v. Alvarado, 541 U.S. 652, 663 (2004).
The state court's decision constitutes an unreasonable
application of clearly established federal law only if it is
objectively unreasonable. See, e.g.,
Renico v. Lett, 559 U.S. 766, 773 (2010);
Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir.
2012). An unreasonable application of federal law is
different from an incorrect one. See Harrington, 562
U.S. at 101. “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.” Id. (internal
quotations omitted). See also Sexton v. Beaudreaux,
138 S.Ct. 2555, 2558-59 (2018).
state appellate court issues a summary decision denying
relief on a claim then raised in a federal habeas petition,
the reviewing federal court must “look through”
the appellate court's decision to the “last related
state-court decision that does provide a relevant
rationale” for denying the claim. Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018). In the absence of
any evidence or argument that the appellate court relied on
different grounds for denying relief than the trial court,
the federal habeas court presumes the appellate court adopted
the same reasoning proffered by the trial court. Id.
Additionally, the factual findings of a state court are
presumed to be correct and can be reversed by a federal
habeas court only when the federal court is presented with
clear and convincing evidence. See 28 U.S.C. §
2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010);
Miller- El v. Cockrell, 537 U.S. 322, 340 ...