United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
2015, Petitioner Jason Tibbetts ("Tibbetts") was
convicted in state court of one count of luring a minor for
sexual exploitation and one count of sexual exploitation of a
minor. After extensive proceedings in state court, Tibbetts
filed a petition for writ of habeas corpus in this Court.
(Doc. 1.) Magistrate Judge David Duncan issued a Report and
Recommendation ("R & R"), concluding Tibbetts
is not entitled to relief. (Doc. 14.) Tibbetts filed an
objection, (Doc. 15), but having reviewed each ground for
relief, the Court agrees with the R & R that he is not
entitled to relief.
23, 2014, Petitioner Jason Tibbetts was arrested in
connection with his relationship with a 17-year-old girl.
(Doc. 21 at 8.) On May 29, 2014, a search warrant was issued
to search Tibbetts' cell phone. (Doc. 21 at 11-14.) In
June 2014, a grand jury indicted Tibbetts on one count of
luring a minor for sexual exploitation and one count of
sexual exploitation of a minor. (Doc. 7-1 at 2.) On November
13, 2014, a second search warrant was issued to search
Tibbetts' cell phone using new technology that can obtain
deleted content. (Doc. 9-2 at 2-4.) Subsequently, a jury
convicted Tibbetts of both counts of the indictment and
Tibbetts was sentenced to concurrent terms, the longest of
which was 12 years. (Doc. 7-2 at 2-6.) Tibbetts initiated an
appeal and the Arizona Court of Appeals affirmed his
convictions and sentences. (Doc. 7-6.)
then filed a Notice of Post-Conviction Relief
("PCR") and a pro per petition alleging
ineffective assistance of counsel and trial court errors.
(Docs. 7-7.) The Superior Court of Arizona ruled that the
arguments in the petition were "precluded as having been
previously ruled upon or untimely filed or the Petition
lack[ed] sufficient basis in law and fact to warrant further
proceedings herein and no useful purpose would be served by
further proceedings." (Doc. 8-2 at 2.) Tibbetts appealed
and the Arizona Court of Appeals granted review and denied
relief. (Doc. 8-6.)
26, 2017, Tibbetts filed a petition for writ of habeas corpus
in this Court. (Doc. 1.) Magistrate Judge Duncan issued an R
& R, recommending the petition be denied. (Doc. 14.)
Tibbetts filed an objection to the R & R. (Doc. 15.)
Court "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); 28
U.S.C. § 636(b)(1)(C). A proper objection requires
"specific written objections to the proposed findings
and recommendations." Fed.R.Civ.P. 72(b); see
Warling v. Ryan, No. CV 12-01396, 2013 WL 5276367, at *2
(9th Cir. 2013). A general objection, on the other hand,
"has the same effect as would a failure to object."
Warling, 2013 WL 5276367, at *2.
Ineffective Assistance of Counsel Claims
Claims in the Petition that were not presented to the Court
Duncan found the following claims of ineffective assistance
of trial counsel were raised for the first time in the
Petition: failure to object to irrelevant witnesses, failure
to provide discovery documents to Tibbetts, waiving time
without Tibbetts' presence or permission, and failure to
object to prosecutorial misconduct. (Doc. 14 at 4.) In
addition, Judge Duncan found that Tibbetts raised for the
first time in the Petition that appellate counsel was
ineffective for failing to make the following arguments:
trial counsel should have interviewed witnesses before trial,
the trial court should not have allowed certain witnesses to
testify, the trial court should have conducted an evidentiary
hearing, trial counsel failed to communicate with Tibbetts,
trial counsel failed to provide discovery documents to
Tibbetts, trial counsel waived time without Tibbetts'
presence or permission, trial counsel failed to present all
available defenses, and the cumulative effect of trial
counsel's errors prejudiced Tibbetts. (Doc. 14 at 4.)
Judge Duncan concluded that because Tibbetts did not present
these claims to the Arizona Court of Appeals, they were
procedurally defaulted. (Doc. 14 at 4.)
federal court may not grant habeas relief unless the
petitioner "has exhausted available state remedies as to
any of his federal claims." Coleman v.
Thompson, 501 U.S. 722, 731 (1991). To exhaust state
remedies in Arizona, the petitioner must "fairly
present" his claims to the Arizona Court of Appeals.
Castillo v. McFadden, 399 F.3d 993, 998-1000 (9th
Cir. 2004). This requires a description of "both the
operative facts and the federal legal theory on which his
claim is based so that the state courts [could] have a
'fair opportunity' to apply controlling legal
principles to the facts bearing upon his constitutional
claim." Id. at 999 (quoting Kelly v.
Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). If the
petitioner fails to "fairly present" his claims to
the state court, they are procedurally defaulted and
generally barred from federal habeas review. Id. at
998. Exceptions arise where the petitioner can
"demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750.
regard to ineffective assistance of counsel ("IAC")
claims, "each 'unrelated alleged instance ... of
counsel's ineffectiveness' is a separate claim for
purposes of exhaustion." Gulbrandson v. Ryan,738 F.3d 976, 992 (9th Cir. 2013) (citation omitted). To show
cause for procedural default in Arizona, a petitioner must
demonstrate: (1) "counsel in the initial-review
collateral proceeding, where the claim should have been
raised, was ineffective under the standards of Strickland
v. Washington,466 U.S. 668 (1984)"; and (2)
"the underlying [IAC] claim is a substantial one, which
is to say that the prisoner must demonstrate that the ...