JAMES A. TEILBORG, District Judge.
Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation ("R&R"), recommending that the Petition be denied. (Doc. 32). Petitioner filed objections to portions of the R&R. (Doc. 35).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge 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 (9
In this case, the Court will review the portions of the R&R to which Petitioner objected de novo.
The Petition in this case was filed under 28 U.S.C. §2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law"
The Petition in this case raises six Grounds for relief, two of which each have four distinct factual predicates. (R&R at 6). The Court will address each Ground in turn.
Petitioner claims that his right to counsel was violated because he was not given a mistrial over the prosecutor's questions and he did not receive a requested jury instruction on the prosecutor's questions. The R&R recommends that this Court deny relief on this claim. (R&R at 19-25). Specifically, the R&R concludes that this claim was exhausted before the Arizona Courts and that the Arizona Court of Appeals' decision was not contrary to nor and unreasonable application of federal law, nor was it an unreasonable determination of the facts. (R&R at 21-24).
Petitioner does not make a specific objection to this recommendation. Nonetheless even if an objection was implied in Petitioner's filing (Doc. 35), this Court, considering this Ground de novo, agrees with the R&R that the state court's decision was not contrary to nor and unreasonable application of federal law, nor was it an unreasonable determination of the facts. Accordingly, relief on Ground 1 is denied.
In Ground 2, Petitioner claims that he did not received adequate Miranda warnings. The R&R concludes that this claim was not fairly presented to the state courts and is now procedurally defaulted. (R&R at 13-14). The R&R further finds that Petitioner has failed to show cause and prejudice to overcome this procedural default or actual innocence. (R&R at 18-19). As a result, the R&R recommends that relief on this claim be denied.
Petitioner objects and argues that Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012) is a basis to excuse his default in state court. (Doc. 35 at 15-21). In general, Martinez held that a federal court considering a habeas petition could consider the merits of a defaulted ineffective-assistance-of-trial-counsel claim if that claim was defaulted in state court as a result of the ineffective assistance of first-post-conviction-relief counsel. Id.
Here, Petitioner is not raising an ineffective assistance of counsel claim in Ground 2. He is raising a Miranda claim. Martinez does not provide a basis for excusing the failure to properly exhaust a Miranda claim in state court. Thus, the procedural bar to this Court considering the merits of this claim applies and Petitioner's objection is overruled.
Moreover, even if this Court were to consider the merits of this claim pursuant to 28 U.S.C. § 2254(b)(2), relief would be denied. Specifically, for the reasons stated by Petitioner's appellate counsel (R&R at 35), there was no Miranda violation. Thus, even if this Court considered the merits of this claim, or re-cast it as an ineffective assistance of counsel claim, Petitioner is not entitled to habeas relief.
In Ground 3, Petitioner claims the identification procedures used against him violated his rights. The R&R concludes that this claim was not fairly presented to the state courts and is now procedurally defaulted. (R&R at 14). The R&R further finds that Petitioner has failed to show cause and prejudice to overcome this procedural default or actual innocence. (R&R at 18-19). As a result, the R&R recommends that relief on this claim be denied.
Petitioner objects and argues that Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012) is a basis to excuse his default in state court. (Doc. 35 at 15-21). In general, Martinez held that a federal court considering a habeas petition could consider the merits of a defaulted ineffective-assistance-of-trial-counsel claim if that claim was defaulted in state court as a result of the ineffective assistance of first-post-conviction-relief counsel. Id.
Here, Petitioner is not raising an ineffective assistance of counsel claim in Ground 3. He is raising an identification claim. Martinez does not provide a basis for excusing the failure to properly exhaust an identification claim in state court. Thus, the procedural bar to this Court considering the merits of this claim applies and Petitioner's objection is overruled.
Moreover, even if this Court were to consider the merits of this claim pursuant to 28 U.S.C. § 2254(b)(2), relief would be denied. Specifically, for the reasons stated by Petitioner's appellate counsel (R&R at 35), there was no constitutional defect in the identification procedures. Thus, even if this Court considered the merits of this claim, or re-cast it as an ineffective assistance of counsel claim, Petitioner is not entitled to habeas relief.
Petitioner claims four theories of ineffective assistance of trial counsel: 1) trial counsel was later disciplined by the bar (unrelated to Petitioner's case); 2) trial counsel failed to locate and interview more witnesses; 3) trial counsel did not impeach the victim with a prior criminal record; and 4) trial counsel inadequately questioned the witnesses when they identified Petitioner. (R&R at 25). The R&R examined all of these claims and determined that none of them entitled Petitioner to habeas relief. (R&R at 25-33).
Petitioner filed objections to the R&R in general. (Doc. 35). At pages 8-14 Petitioner goes on at length about all of the reasons he disliked his counsel. However, none of those reasons are specific to the four factual predicates of ineffective assistance of counsel that the R&R summarized from the Petition. Thus, effectively, Petitioner did not file objections to this portion of the R&R and this Court could accept and adopt it without further review.
Alternatively, even if Petitioner's objections could be construed as specific objections to the R&R's findings on these factual predicates to ineffective assistance of counsel, and the Court reviews this Ground de novo, Petitioner is not entitled to relief. As the R&R correctly states:
(R&R at 26).
The fact that bar counsel was disciplined after Petitioner's case for matters unrelated to Petitioner case in no way meets the standard for ineffective assistance of counsel set forth in Strickland. See (R&R at 27-29); United States v. Ross, 338 F.3d 1054, 1056-57 (9th Cir. 2003). Accordingly, relief on this claim is denied.
Petitioner's assertions that other witnesses exist or that such witnesses would have helpful testimony is speculation. (R&R at 29-31). Moreover, to the extent the Petitioner identified certain witnesses and those witnesses would have inculpated Petitioner further, Petitioner's trial counsel exercised reasonable strategy to not call them. (Id.). Thus, trial counsel's performance was not deficient under Strickland. Therefore, relief on this claim is denied.
Petitioner complains that trial counsel failed to impeach the victim with the victim's prior criminal record. (R&R at 31). There is no evidence that the victim had a prior criminal record. (Id.). Accordingly, counsel's performance was not deficient under Strickland and relief is denied.
Petitioner argues that trial counsel failed to examine the witnesses. (R&R at 31-33). However, counsel did examine the witnesses and Petitioner makes no argument or showing that the examination was deficient under Strickland. (Id.). Moreover there was substantial evidence against Petitioner; thus, Petitioner did not suffer any prejudice as is required by Strickland. (Id.). Therefore, relief is denied.
In Ground 5, Petitioner claims his appellate counsel was ineffective for not raising four additional claims on appeal. (R&R at 33). The R&R concludes that counsel made a reasonable strategic choice as to which claims to raise, and those choices were not deficient performance under Strickland. (R&R at 33-36).
Petitioner objects and argues that he told counsel what to raise on appeal and that counsel was obligated to argue the claims Petitioner requested be raised. (Doc. 35 at 21). As the R&R states, appellate counsel has no duty to raise particular claims just because a client asks that such claims be raised. (R&R at 34). Thus, Petitioner's objection that counsel did not have the authority to limit the claims raised on appeal is overruled. Further, the Court agrees with the R&R that Petitioner's appellate counsel made reasonable strategic choices to pursue only the claims counsel thought had the greatest likelihood of success. (R&R at 33-36). Thus, appellate counsel's performance was not deficient under Strickland and relief on this claim is denied.
In Ground 6, Petitioner claims that his sentence violates due process and his right to a jury trial. The R&R concludes that this claim was not fairly presented to the state courts and is now procedurally defaulted. (R&R at 14-15). The R&R further finds that Petitioner has failed to show cause and prejudice to overcome this procedural default or actual innocence. (R&R at 18-19). As a result, the R&R recommends that relief on this claim be denied.
Petitioner objects and argues that Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012) is a basis to excuse his default in state court. (Doc. 35 at 15-21). In general, Martinez held that a federal court considering a habeas petition could consider the merits of a defaulted ineffective-assistance-of-trial-counsel claim if that claim was defaulted in state court as a result of the ineffective assistance of first-post-conviction-relief counsel. Id.
Here, Petitioner is not raising an ineffective assistance of counsel claim in Ground 6. He is raising a sentencing claim. Martinez does not provide a basis for excusing the failure to properly exhaust a sentencing claim in state court. Thus, the procedural bar to this Court considering the merits of this claim applies and Petitioner's objection is overruled.
Moreover, even if this Court were to consider the merits of this claim pursuant to 28 U.S.C. § 2254(b)(2), relief would be denied. Specifically, for the reasons stated by Petitioner's appellate counsel (R&R at 35-36), Petitioner's sentence was not illegal. Thus, even if this Court considered the merits of this claim, or re-cast it as an ineffective assistance of counsel claim, Petitioner is not entitled to habeas relief.
Petitioner concludes his objections by seeking an evidentiary hearing. (Doc. 35 at 25-26). Petitioner makes no showing as to what he would offer at an evidentiary hearing. Instead, he cites a state rule of procedure claiming that the rule requires an evidentiary hearing. (Doc. 35 at 26). First, this Court is not bound by the Arizona Rules of Criminal Procedure. Second, Petitioner has not alleged any facts which, if true, would entitle him to relief; thus, no evidentiary hearing is necessary. See West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010). Accordingly, Petitioner's request for an evidentiary hearing is denied.
Based on the foregoing,
