Sernas v. Ryan

          HONORABLE SUSAN R. BOLTON JUDGE

          REPORT AND RECOMMENDATION

          CAMILLE D. BIBLES UNITED SLATES MAGISTRATE JUDGE

         Petitioner 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).

         I. Background

         A 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 at 13).

         The 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.^[1] 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 paraphernalia conviction.

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).

         Sernas 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.

         Inter 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 searched.

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).

         Sernas 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. (Id.).

         The 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.” (Id.).

         Sernas 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 (2018).

         In his 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 16).

         Respondent 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).

         II. Analysis

         A. Governing Law

         1. The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)

         The 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).

         When a 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 ...