Tibbetts v. Ryan

          ORDER

          HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT JUDGE.

         In 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.

         FACTUAL BACKGROUND

         On May 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.)

         Tibbetts 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.)

         On July 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.)

         STANDARD OF REVIEW

         The 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.

         ANALYSIS

         I. Ineffective Assistance of Counsel Claims

         A. Claims in the Petition that were not presented to the Court of Appeals

         Judge 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.)

         A 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.

         With 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 ...