REPORT AND RECOMMENDATION

DAVID K. DUNCAN, Magistrate Judge.

On August 11, 2016, Petitioner Johnathan T. Hernandez ("Petitioner" or "Hernandez") filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) Petitioner currently is confined in the Arizona State Prison Complex, Central Arizona Correctional Facility in Florence, Arizona. (Id.) He was convicted after a jury trial on one count of sexual conduct with a minor, and was sentenced to a mitigated term of 18 years imprisonment. (Id. at 1-2) Petitioner raises a single ground for relief: that he allegedly received ineffective assistance of counsel ("IAC") in violation of the Sixth Amendment to the U.S. Constitution when his counsel advised him to reject a plea offer based on counsel's advice that Petitioner's mistake as to the victim's age could be asserted as a defense at trial. (Id. at 6-8)

Respondents filed their Answer on March 15, 2017. (Doc. 11) Respondents argue that Petitioner's ground for relief fails on the merits. (Id. at 7-13) Petitioner filed his Reply on July 10, 2017. (Doc. 18) In his Reply, Petitioner contends that the Arizona Court of Appeals improperly made evidentiary findings without holding a hearing and unreasonably applied the Strickland standard to Petitioner's IAC claim. (Doc. 18 at 7-18)

For the reasons set forth below, the Magistrate Judge recommends that this Court deny the Petition for Writ of Habeas Corpus and dismiss this action with prejudice.

I. BACKGROUND

A. Petitioner's Indictment, Jury Trial, and Sentence

In its Memorandum Decision on Petitioner's direct appeal, the Arizona Court of Appeals set forth the following facts:1

(Doc. 11-1 at 8)

B. Petitioner's Direct Appeal

On direct appeal to the Arizona Court of Appeals, Petitioner's appointed counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that after reviewing the record she had been unable to identify arguable questions of law, and requesting the court of appeals to conduct an Anders review.2 (Doc. 11-1 at 7) Petitioner did not file a supplemental brief. (Id.)

After reviewing the record, the Arizona Court of Appeals failed to find any error, "much less fundamental error." (Id. at 9) The court noted that the proceedings had complied with the Arizona Rules of Criminal Procedure, Petitioner had been represented by counsel at all stages of the proceedings, and the sentence he received was within the statutory range, but that he was entitled to one additional day of presentence incarceration credit. (Id. at 8-9) Moreover, the court found the evidence supported Petitioner's conviction, and specifically mentioned that Petitioner admitted having been in the motel with his victim, and that the jury had decided whether to believe the testimony of Petitioner or his victim as to whether he had sexual intercourse with her. (Id. at 9) Petitioner did not request review in the Arizona Supreme Court. (Doc. 1 at 3)

C. Petitioner's Post-Conviction Relief Action

Hernandez filed a petition for post-conviction relief ("PCR") in the trial court, through counsel. (Doc. 11-4) He asserted the same issue that is presented here, and requested an evidentiary hearing. (Id. at 90) Petitioner argued that he was misled by his trial counsel, and relied on counsel's advice that he qualified for a defense predicated on his belief that his victim was 18 years old, although in fact she was only 13. (Doc. 11-4 at 101-105) Petitioner contends he suffered prejudice resulting from the alleged ineffective representation when he relied on counsel's advice to reject a plea agreement and to proceed instead with a trial. (Id. at 102)

The superior court noted that Petitioner, his wife, and his mother each averred in affidavits that Petitioner declined to accept a plea agreement based on his counsel's advice that he could assert a viable defense based on his belief that the victim was 18 years old, and that she had consented to the sexual act charged. (Id. at 110) However, the court also noted that Petitioner and his parents attended the settlement conference, that the transcript for the conference documented Petitioner had been informed that consent was not a defense in his case, and that Petitioner's trial defense was not based on his belief of the victim's age. (Id.) The court explained that defense counsel pursued a defense of innocence at trial, and that counsel did not seek a jury instruction on petitioner's "belief that the victim was eighteen was a defense to sexual conduct with a minor." (Id. at 111) The court also indicated the trial transcript documented defense counsel declaring "I don't think we've made any argument, whatsoever, or really submitted any evidence as to what my client's opinion of her age or what her—or what his thoughts of her age was at any time during the incident." (Id.) The PCR court further concluded that Petitioner had "faced the same sentencing range after trial that he did in the plea agreement except that the sentence was capped at the presumptive as there were no aggravating factors." (Id.) It concluded that Petitioner had failed to present evidence establishing he would have received a lesser sentence by accepting the plea offer, and similarly failed to otherwise demonstrate he had been prejudiced by failing to accept the plea. (Id. at 112)

Hernandez petitioned for review in the Arizona Court of Appeals. (Id. at 114-130) That court granted review, but denied relief. (Id. at 139) The court of appeals concluded that although Petitioner's defense counsel had "attempted to circumvent" the statute limiting the defense of mistaken belief of the victim's age to victims aged fifteen to seventeen, counsel had "ultimately conceded" this defense did not apply to Petitioner's case, and had "expressly so stated during the settling of jury instructions." (Id. at 138) Moreover, the court of appeals held that the PCR court had properly rejected Petitioner's claim that he had refused the plea offer in reliance on defense counsel's erroneous advise that he could "assert as a defense that the victim had told him[,] and he had believed[,] she was eighteen and could, therefore[,] consent to sexual conduct." (Id. at 139) The court of appeals held that the PCR court did not abuse its discretion by rejecting this claim without an evidentiary hearing because: (1) Petitioner was told at the settlement conference that the victim's consent was not a defense; (2) his defense at trial was that he did not have sexual contact with the victim, and was not that he had engaged in the charged acts but mistakenly believed she was eighteen years old; and (3) Petitioner was not prejudiced by the rejection of the plea offer because he "would have been required to enter a guilty plea to child prostitution, with a sentencing range of thirteen to twenty-seven years, and guilty pleas to two amended counts of attempted child molestation, requiring two lifetime probation terms." (Id.) The court of appeals stated that when a claim is based on affidavits lacking a "`reliable factual foundation'" and "`some substantial evidence' to support it," a court may reject the claim without an evidentiary hearing. (Id., quoting State v. Krum, 183 Ariz. 288, 294-95, 903 P.2d 596, 602-03 (1995)).

The Arizona Supreme Court denied Hernandez's petition for review. (Id. at 141)

II. LEGAL FRAMEWORK

A. Ineffective Assistance of Counsel ("IAC")

Under clearly established federal law on IAC, Petitioner needs to show that his counsel's performance was both objectively deficient, and caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). This results in a "doubly deferential" review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). This Court has discretion to determine which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). A habeas court reviewing a claim of IAC must determine "whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred." Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). In other words, this Court's "pivotal question is whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 562 U.S. 86, 101 (2011).

Petitioner received objectively deficient representation if his counsel "`fell below an objective standard of reasonableness' such that it was outside `the range of competence demanded of attorneys in criminal cases.'" Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Strickland, 466 U.S. at 687). To demonstrate prejudice, Petitioner "must show that there [wa]s a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

B. 28 U.S.C. § 2254 Habeas Petition — Legal Standard of Review

On habeas review, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of a claim either "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This is a "`highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

III. DISCUSSION

Petitioner's sole ground for relief is that his Sixth Amendment right to effective assistance of counsel was violated when his attorney gave him faulty advice to reject the State's plea offer, based on the incorrect legal theory that he could argue as a defense that he had held the mistaken belief his victim was 18 years old. (Doc. 1 at 6-8) Respondents oppose this claim on its merits.

A. Whether Petitioner's IAC Claim is Meritorious

Hernandez argues that his attorney advised him prior to trial, including after his settlement conference, "that based on his reasonable belief that the victim was 18 years of age at the time of the offense[s], he had a valid and recognizable defense at trial." (Id. at 7) Petitioner asserts that he rejected the plea offer in reliance on that advice. (Id.) Petitioner contends that if his lawyer had known the law, he would have realized that this defense applies under Arizona law only when the victim was between the ages of 15 and 17, and that it was inapplicable to his case because the victim had actually been 13 years old. (Id., citing A.R.S. § 13-1407(B)) Arizona Revised Statutes section 13-1407(B) provides:

A.R.S. § 13-1407(B). Petitioner further contends that had he accepted the plea offer, he would have received a much lighter sentence of "5 years mitigated, 10 years presumptive, or 15 years aggravated." (Id. at 8)

As noted, the applicable standard for determining whether Petitioner's defense counsel provided IAC requires Petitioner to show that his counsel's performance was objectively deficient, and also caused him prejudice. Strickland, 466 U.S. at 687. In federal habeas review, the Court reviews the state court's last reasoned decision addressing the merits of an issue. Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010), citing Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). In this case, the applicable last reasoned decision was that of the Arizona Court of Appeals' April 8, 2015 memorandum decision on Hernandez's petition for review of the PCR court's decision. (Doc. 11-4 at 137-139)

In Petitioner's PCR action, the superior court applied the Strickland standard in finding that the record did not support either Petitioner's argument that his attorney misled him into rejecting the plea offer, or his contention that he would have received a less severe sentence by taking the plea offer than he eventually received after trial. (Id. at 109-112) On review, the Arizona Court of Appeals held that the PCR court's ruling was not an abuse of discretion. (Id. at 138-139) The court of appeals determined the record supported the PCR court's findings that: (1) an evidentiary hearing was not required; (2) Petitioner failed to raise a colorable claim asserting his counsel's representation was objectively deficient; and (3) Petitioner was not prejudiced by his rejection of the plea offer. (Id.)

1. State court ruling on Petitioner's counsel's performance

The Arizona Court of Appeals upheld the PCR court's rejection of Petitioner's contention that he declined to enter the plea offer based on his reliance on his counsel's faulty advice that a defense would be available involving his belief of his victim's age. (Id. at 138-139) The court of appeals noted that the transcript of the settlement conference documented the prosecutor had expressly told Petitioner that the victim's consent was not a defense, and that Petitioner's counsel did not assert this defense at trial. (Id. at 139) Further, the court emphasized that Petitioner's defense at trial was that Petitioner had no sexual contact with the victim. (Id.)

At trial, Petitioner's counsel commented that "there is a real issue in this case as to how old the victim was at that time, and how old she claimed to be at that time," but did not argue that the issue also involved how old Petitioner thought the victim was. (Doc. 11-2 at 14-15) In fact, in his opening statement, Petitioner's counsel told the jury that "one of the biggest issues, if not the biggest issue, is the credibility of the victim." (Id. at 12)

Petitioner's counsel adduced testimony that victim lied to her father about having a cell phone prior to the time of her meeting with Petitioner. (Id. at 87-88) He also questioned the victim about hiding her use of MySpace from her father by accessing her account only at her friend's house (Id. at 90-91), asked the victim's father about circumstances around the time of the alleged sexual abuse when the victim had reportedly lied to him (Id. at 157-167), and while cross-examining Detective Merkel, asked the detective if he had considered that the victim might have tampered with a key item of evidence, and if so, whether she might also have been willing to lie about her accusation of rape (Doc. 11-3 at 87-88).

After open court proceedings ended on August 18, 2011, the following colloquy occurred between the trial judge (Q), defense counsel (A) and the prosecutor (A*), beginning with the court's question:

(Doc. 11-3 at 146-147)

At a bench conference, Petitioner's counsel indicated that mistake about a victim's age would be a defense if the victim were 15, 16, or 17 years old, and further stated that it had not been proven yet that the victim had been only 13 at the time of the charged conduct. (Doc. 11-2 at 94-95) The court of appeals characterized this approach as defense counsel's attempt to "circumvent" applicable statutes, and further noted that defense counsel had expressly stated that this defense did not apply to Petitioner's case. (Doc. 11-4 at 138) The record establishes that when discussing jury instructions and whether to include a strict liability instruction about what the Petitioner's opinion was of the victim's age, defense counsel stated that he did not agree with the contention that:

(Doc. 11-3 at 240) Consistent with this approach, in closing argument, defense counsel made the victim's credibility and her motive for allegedly trying to extort money from Petitioner the centerpieces of the defense case. (Doc. 11-4 at 32-34)

On this record, the Magistrate Judge concludes that the state court's rejection of Petitioner's IAC claim was not an unreasonable application of Strickland's performance prong.

2. State court's ruling on whether Petitioner suffered prejudice

Petitioner was indicted on three counts, as follows: (Count 1) alleging that he "intentionally or knowingly engaged in sexual intercourse or oral sexual contact with . . . a minor under the age of fifteen years, (to wit: sexual intercourse) in violation of A.R.S. §§ 13-1401, 13-1405, 13-3821, 13-610, 13-705, 13-701, and 13-801"; (Count 2) alleging that he "intentionally or knowingly engaged in sexual intercourse or oral sexual contact with . . . a minor under the age of fifteen years, (to wit: digital penetration in the shower) in violation of" the same statutes listed in Count 1; and (Count 3) alleging that he "knowingly caused. . . a minor under fifteen years of age, to engage in prostitution, in violation of A.R.S. §§ 13-3212, 13-3211, 13-705, 13-701, 13-702, and 13-801." (Doc. 11-1 at 3-4)

At the settlement conference, the superior court judge asked the prosecutor, Mr. Gadow, about any pending plea offer, followed by a question to Petitioner's counsel, Mr. Dossey:

(Doc. 11-1 at 19-20)

At trial, the jury found Petitioner guilty of the Count 1 charge of sexual conduct with a minor, which involved sexual intercourse. (Doc. 11-4 at 56) The jury found Petitioner not guilty of the Count 2 charge of sexual conduct with a minor, involving digital penetration in the shower. (Id.) The jury was unable to reach agreement on the Count 3 charge involving an allegation of child prostitution. (Id. at 57)

At sentencing, the superior court dismissed Counts 2 and 3 without prejudice. (Id. at 70) The State argued for a sentence of the presumptive term of 20 years and noted that such a term was the maximum permitted, as the State did not "do aggravators at the trial." (Id.) Petitioner's attorney urged the minimum possible term of 13 years. (Id. at 76-77)

The U.S. Supreme Court has instructed that where a defendant alleges IAC leading to the rejection of a plea offer, a defendant will show prejudice when he demonstrates that:

Lafler v. Cooper, 566 U.S. 156, 163 (2012). Although Petitioner declares that he would have accepted the plea offer absent defense counsel's misadvice, this declaration is contrasted with Petitioner's consistent statements through sentencing, that he did not have sexual contact with the victim. The court of appeals reasonably relied on this circumstance in finding that the defense strategy at plea negotiations and at trial was intended to be, and was, that Petitioner did not engage in the charged acts. (Doc. 11-4 at 138-139)

Most importantly, however, is Petitioner's inability to demonstrate prejudice, such that if he had accepted the plea offer he would have received a less severe sentence than the sentence that was imposed after his conviction. Petitioner appears to concede his predicament by arguing, without any evidentiary support, that if his defense counsel "had been effective, he would have negotiated a more favorable plea deal than the only one offered by the prosecution." (Doc. 18 at 14) The state court of appeals reasonably found that the record supported the finding that, because the sentencing range for the child prostitution count included in the plea offer was the same as the range for the count on which he was convicted, Petitioner had not shown he was prejudiced by rejecting the plea offer.

3. Conclusion

In reviewing a state court's resolution of an ineffective assistance of counsel claim, the Court considers whether the state court applied Strickland unreasonably:

Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citations omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) ("Under § 2254(d)'s `unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.") (citations omitted). The Court finds that the state court's rejection of the claim set forth in the Petition was neither contrary to, nor an unreasonable application of federal law, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. As such, the Court will recommend that the Petition be denied and dismissed.

B. Petitioner's Request for an Evidentiary Hearing

Petitioner asserts that he is entitled to an evidentiary hearing in this habeas action because he has asserted a colorable IAC claim for relief, and he has not been accorded a state or federal evidentiary hearing on this claim. (Doc. 18 at 12, citing Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005)) To establish a colorable claim, a petitioner must "`allege specific facts which, if true, would entitle him to relief.'" Earp, 431 F.3d at 1167 n.4. Because Petitioner's claim alleges IAC, he must assert a colorable claim on both prongs of Strickland. Stokley v. Ryan, 659 F.3d 802, 811 (9th Cir. 2011). Under the Strickland standard, a convicted defendant must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. 668 at 687-88. As is discussed above, Petitioner clearly has not asserted a colorable claim on the prejudice prong of the Strickland test, and on that basis alone he is not entitled to an evidentiary hearing. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000), quoting Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.") For the same reason, the state court acted reasonably in refusing Petitioner's requests for evidentiary hearing on this claim.

IV. CONCLUSION

For the reasons set forth above, the Magistrate Judge concludes that the Petition fails on the merits. Therefore, the Magistrate Judge recommends that the Petition be denied and dismissed with prejudice.

Accordingly,

IT IS THEREFORE RECOMMENDED that Johnathan T. Hernandez's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.