EILEEN S. WILLETT, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Monty L. Helms' ("Petitioner") Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the "Petition") (Doc. 1). Respondents have filed their Answer (Doc. 10), and Petitioner has filed a Reply (Doc. 11). The matter is deemed ripe for consideration.
The Petition contains four grounds for federal habeas relief. Although the Petition is timely, the undersigned finds that Ground One is procedurally defaulted and the remaining grounds are meritless. It is therefore recommended that the Petition be denied and dismissed with prejudice.
In March 2009, police officers executed a search warrant for Petitioner's residence in Apache Junction, Arizona. (Doc. 1-6 at 148-49). Officers found the following items in Petitioner's bedroom: $1,210 in cash strewn on the floor, a glass pipe, a small electronic scale with methamphetamine residue, two motor vehicle titles in Petitioner's name, and a locked safe. (Doc. 10-1 at 55; Doc. 1-6 at 21-26, 58, 159-169, 182-96). Officers pried the safe open and found two loaded firearms, an eyeglass case containing syringes and a baggie of methamphetamine, empty baggies, a baggie of methamphetamine, a scale with methamphetamine residue, and a manila envelope with a handwritten note addressed to "Monte." (Doc. 1-6 at 169-96).
Petitioner was indicted on three counts: (i) possession of a dangerous drug for sale in violation of ARIZ. REV. STAT. § 13-3407(A); (ii) possession of drug paraphernalia in violation of ARIZ. REV. STAT. § 13-3415(A); and (iii) misconduct involving weapons in violation of ARIZ. REV. STAT. § 13-3102(A)(8). (Doc. 1-3 at 63). Following a settlement conference, the parties reached a plea agreement. (Doc. 1-2 at 94). The plea agreement contained a stipulated sentence of 2.5 years. (Id. at 94-95). At the hearing on August 4, 2009, Petitioner requested to withdraw from the plea agreement. The trial judge told Petitioner that the settlement conference judge "filled me in a little bit on what's going on with this case. You're passing up a sweetheart of a deal. It's your choice. Do you want me to not accept the plea agreement. . . .[?]" (Doc. 1-8 at 97-98). Petitioner confirmed his desire to withdraw from the plea agreement, stating that "I think I can beat this case, your honor." (Id. at 97). The trial judge then stated on the record that Petitioner withdrew from the plea agreement. (Id. at 98).
On April 8, 2010, Petitioner's trial counsel filed a motion to suppress the evidence obtained during a search warrant, arguing that (i) the information used to obtain the search warrant was stale and (ii) police officers violated the knock and announce rule when executing the search warrant. (Doc. 10-3 at 23). The trial court denied the motion to suppress after holding an evidentiary hearing. (Id. at 51).
After a two-day jury trial, Petitioner was found guilty as charged. (Doc. 10-1 at 13, 16-21). The Pinal County Superior Court sentenced Petitioner to a total of 12.5 years in prison. (Id. at 17-18).
Petitioner timely raised two claims on direct appeal. (Id. at 23-47). In the first claim, Petitioner argued that he was denied his right to an automatic change of judge after withdrawing from his guilty plea. (Id. at 39-40). Petitioner did not request a change of judge, but asserted that the trial court should have advised him of the right. (Id. at 40). In the second claim, Petitioner challenged the sufficiency-of-the-evidence to sustain guilty verdicts as to Counts One and Three (possession of a dangerous drug for sale and misconduct involving weapons). (Id. at 40-45). On July 29, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 2-9). Petitioner did not petition the Arizona Supreme Court for review.
On July 5, 2011, Petitioner filed a notice of post-conviction relief ("PCR"). (Id. at 78-80). In his PCR petition, Petitioner argued that his trial counsel's "woefully inadequate" motion to suppress and failure to call two individuals as witnesses at trial deprived Petitioner of the effective assistance of counsel. (Doc. 10-2 at 30-35). The trial court denied the PCR petition on the merits. (Doc. 10-5 at 2-3). Petitioner filed a petition for review in the Arizona Court of Appeals. (Id. at 5-7). On April 11, 2014, the Arizona Court of Appeals granted review, but denied relief. (Id. at 53-58).
On August 22, 2014, Petitioner filed the Petition seeking federal habeas relief. Respondents answered on December 29, 2014 (Doc. 10). Petitioner replied on January 22, 2015. (Doc. 11).
Respondents do not argue, and the undersigned does not find, that the Petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214.
For over one hundred years, it has been settled that a "state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts." Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) ("It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus."). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) ("[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.") (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) "exhausted" the available state court remedies; (ii) shown that there is an "absence of available State corrective process"; or (iii) shown that "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to "exhaust" state court remedies, a petitioner's federal claims must have been "fully and fairly presented" in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To "fully and fairly present" a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner "explicitly alerted" a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be "explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds").
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See Id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate "cause," a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate "prejudice," the petitioner must show that the alleged constitutional violation "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 ("Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied `fundamental fairness' at trial.").
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a "constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim." Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), "clearly established federal law" refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is "contrary to" such clearly established federal law if the state court (i) "applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases" or (ii) "confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent." Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). A state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004) (as amended) (internal quotation marks and citation omitted).
In Ground One, Petitioner challenges the trial court's denial of Petitioner's request for a change of judge after Petitioner withdrew from his guilty plea. (Doc. 1 at 6). Petitioner argues that the trial court "violated petitioner [sic] right to unbiased judge, right to due process, right to fair trial as guaranteed by 4
The claim in Ground One was presented in Petitioner's Opening Brief on direct appeal. (Doc. 10-1 at 39-40). Petitioner argued that the trial court violated Rule 17.4(G) of the Arizona Rules of Criminal Procedure when it denied Petitioner's request for a change of judge. Rule 17.4(G) states that "If a plea is withdrawn after submission of the presentence report, the judge, upon request of the defendant, shall disqualify himself or herself. . . ." (Id. at 39). Citing to the Arizona Court of Appeals case State v. Barnett, 738 P.2d 783 (Ariz. Ct. App. 1987), Petitioner argued that "[t]his right is automatic, when the defendant has exercised his option to withdraw from his guilty plea." (Id.). Petitioner's Opening Brief does not allege that the trial court's denial of Petitioner's change of judge request violated federal law.
Significantly, Petitioner presented the claim in Ground One as a question of state law, not federal law, on direct appeal. Although the Barnett decision states that there is no federal constitutional due process right to excuse a judge upon rejection of a plea agreement, "citation to a state case that discusses federal precedents does not necessarily put the state supreme court on notice that petitioner is claiming a violation of a federal right." Galvan, 397 F.3d at 1202. It is a fair reading of Petitioner's Opening Brief to conclude that Petitioner cited Barnett only to support Petitioner's state-law claim that the trial court violated Rule 17.4(G) of the Arizona Rules of Criminal Procedure. Thus, Petitioner's citation to Barnett was not sufficient to put the Arizona Court of Appeals on notice that Petitioner was claiming a violation of a federal right. See id.; Peterson v. Lampert, 319 F.3d 1153, 1158-59 (9th Cir. 2003) (rejecting claim that citation to state cases analyzing federal constitutional claim constituted fair presentation given that a "fair reading of [defendant's] counseled petition [for review] was that the cases were cited only to support a state-law claim"); Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir. 2004) (mere citation to state case discussing both state and federal issues does not fairly present federal issue).
Petitioner's failure to alert the Arizona state court to the federal nature of his claim amounts to a failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While a petitioner is not required to recite "book and verse on the federal constitution," Picard, 404 U.S. at 277-78 (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a "somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). Petitioner deprived the Arizona state court of the initial opportunity to review and correct the federal rights violation Petitioner now alleges in Ground One.
Moreover, because Petitioner would be precluded from post-conviction relief on Ground One under Rule 32 of the Arizona Rules of Criminal Procedure, Ground One is technically exhausted and deemed procedurally defaulted.
As discussed previously, the merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013). Here, Petitioner offers no material reason to excuse the procedural default of Ground One, except for alleging that "he is actually innocent of misconduct involving weapons to further a felony drug offense." (Doc. 11 at 11). This vague and conclusory statement is insufficient to excuse Petitioner's procedural default of Ground One. See Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) ("we have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt").
For the above reasons, the undersigned recommends that the Court dismiss Ground One.
In Ground Two, Petitioner states:
(Doc. 1 at 8).
Petitioner presented this claim on direct appeal as to Count One (possession of a dangerous drug for sale) and Count Three (misconduct involving weapons).
In Jackson, the Court held that a sufficiency-of-the-evidence claim must be rejected unless, based on the evidence presented at trial, "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. All evidence must be considered in the light most favorable to the prosecution. Id. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9
Moreover, because "a court under Jackson makes no `determination of the facts' in the ordinary sense of resolving factual disputes," a Jackson claim presented in a federal habeas petition is evaluated under 28 U.S.C. § 2254(d)(1) (unreasonable application of federal law), not 28 U.S.C. § 2254(d)(2) (unreasonable determination of the facts). Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir. 2007), vacated in part on other grounds, 503 F.3d 822 (9th Cir. 2007) ("We have recently joined our sister circuits in using § 2254(d)(1) to evaluate a state court's sufficiency-of-the-evidence determination under Jackson") (citing Juan H., 408 F.3d at 1274); see also Flores v. Beard, 533 F. App'x 730, 731 n.1 (9th Cir. 2013) ("Because we `evaluate a state court's resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2),' we do not address [petitioner]'s § 2254(d)(2) argument."); Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) ("When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1), . . . we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.").
The following are excerpts of the Arizona Court of Appeals' decision rejecting Petitioner's claim:
(Doc. 10-1 at 6-9).
Petitioner challenges the Arizona Court of Appeals' decision on several grounds, which primarily pertain to evidence regarding possession of the safe. First, Petitioner states that he recently discovered audio-recordings of witness statements that his trial counsel allegedly never listened to or had transcribed for use at trial. Petitioner concedes that the State disclosed these audio-recordings to trial counsel fourteen days before Petitioner's trial. (Doc. 1 at 8-9). Petitioner believes the recordings may contain potentially exculpatory evidence that Petitioner did not have possession of the safe. (Id. at 9-10). Petitioner argues that due to this "newly discovered evidence," it is "vertually [sic] impossible to view all the facts." (Id. at 9). The audio-recordings, however, are irrelevant to Petitioner's Jackson claim because the recordings were not presented at Petitioner's trial. Jackson, 443 U.S. at 324 ("the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt") (emphasis added).
Second, Petitioner asserts that "the safe belonged to Steven Hildreth, an individual present in residence at the time of search." (Doc. 1 at 10). According to Petitioner, Mr. Hildreth was the only person able to access the safe. Petitioner also points to the lack of direct evidence establishing Petitioner's connection to the safe (e.g. none of Petitioner's fingerprints were found on items in the safe, no direct evidence that Petitioner directed that the safe be placed in his residence or placed items in the safe, and evidence that Petitioner denied the ability to open the safe when requested by police officers). (Doc. 1 at 10-11; Doc. 11 at 12). These arguments fail to establish that the Arizona Court of Appeals unreasonably applied Jackson.
Under Arizona law, a person has constructive possession of an item if it can be inferred the person had knowledge of the property and dominion or control over the area where it was found. State v. Cox, 155 P.3d 357, 359 (Ariz. Ct. App. 2007). Possession can be sole or joint. Id. Thus, a rational juror could find that Mr. Hildreth owned the safe, but also find that Petitioner jointly possessed the safe. Moreover, the lack of direct evidence such as fingerprints linking Petitioner to the contents within the safe is not dispositive of Petitioner's claim because possession may be proven by circumstantial evidence. Id.; Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) ("Circumstantial evidence and inferences drawn from [the record] may be sufficient to sustain a conviction.") (internal quotation marks and citation omitted). Finally, as noted by the Arizona Court of Appeals, Petitioner's statement to police officers that Petitioner could not open the safe does not compel the conclusion that Petitioner did not possess the safe. Rather, a rational juror could conclude that Petitioner lied to the police officers in an effort to avoid culpability.
The undersigned has reviewed the record and the totality of the evidence. Although the case against Petitioner was based on circumstantial evidence, viewing that evidence in light most favorable to the prosecution, the undersigned finds that a rational trier-of-fact could have found Petitioner guilty as charged.
As discussed by the Arizona Court of Appeals, a glass pipe, small electronic scale, $1,200 in cash, and Petitioner's vehicle titles were found outside the safe in Petitioner's bedroom.
In addition, Petitioner's neighbor testified that the guns should not have been loaded when he placed them in the safe. (Doc. 1-6 at 59-60). An officer testified that it is common to find loaded guns with individuals who sell drugs. (Id. at 41). The officer explained that the guns are needed for protection because "[i]t's common for dope people that sell illegal drugs to rip each other off." (Id.). Thus, in light of the evidence that Petitioner was selling methamphetamine, a juror may reasonably infer that Petitioner loaded the firearms after the safe was placed in his bedroom. Based on all the evidence, the undersigned finds a rational juror could infer that because Petitioner had possession of the drug paraphernalia outside the safe, Petitioner also had possession of the drugs, drug paraphernalia, and firearms found inside the safe that was stored in Petitioner's bedroom.
It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see Walters, 45 F.3d at 1358. As the Ninth Circuit has explained, "[t]he question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991) (citing Jackson, 443 U.S. at 326). Because the Arizona Court of Appeals did not unreasonably apply Jackson, the undersigned recommends that the Court deny Ground Two.
Grounds Three and Four of the Petition raise ineffective assistance of counsel ("IAC") claims regarding Petitioner's trial counsel. Claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a petitioner arguing an IAC claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and "[s]urmounting Strickland's high bar is never an easy task." Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). In the habeas context, the issue is 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 quotation marks and citation omitted). Hence, a review of Strickland claims under AEDPA is "doubly deferential." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) ("We take a `highly deferential' look at counsel's performance [pursuant to Strickland, 466 U.S. at 689], through the `deferential lens of § 2254(d)' . . . .).
In assessing the performance factor of Strickland's two-part test, a court must try not "to second-guess counsel's assistance after conviction." Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers "whether there is any reasonable argument" that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate 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. In other words, it must be shown that the "likelihood of a different result [is] substantial, not just conceivable." Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. 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."); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
In Ground Three, Petitioner alleges that he was denied the effective assistance of counsel in violation of his federal constitutional rights, asserting that "[t]rial counsel's motion to suppress was so inadequate as to be no motion at all, because counsel was ignorant of the law and below prevailing professional norms." (Doc. 1 at 12). Petitioner argues that the affidavit to the application for the search warrant was stale and all evidence obtained would have been dismissed had his trial counsel argued the issue. (Id.).
Petitioner presented the IAC claim in his PCR petition. The last reasoned state court decision on this claim is the April 11, 2014 Arizona Court of Appeals decision. (Doc. 10-5 at 53-58). The Court of Appeals found that the performance of Petitioner's trial counsel was not deficient, stating that "[w]e agree with the trial court that, during argument on the motion to suppress, counsel adequately `br[ought] the issues before the court." (Id. at 57).
Contrary to Petitioner's contentions, Petitioner's trial counsel did argue that the information supporting the search warrant application was stale. In the Motion to Suppress, Petitioner's counsel stated:
(Doc. 10-3 at 23).
At the April 20, 2010 evidentiary hearing on the Motion to Suppress, the Court recognized that staleness was one of the issues raised in Petitioner's Motion to Suppress. (Id. at 29). Petitioner's counsel clarified that he cited Miguel for the principle that "probable cause does not have indefinite life. Probable cause has a short-term life." (Doc. 10-3 at 47). Petitioner's counsel argued that "if probable cause dissipates within five days once a warrant is signed, why is it any different when trying to get a warrant?" (Id. at 48). The Court responded "[b]ecause that's what the statute says." (Id.). The Court noted that "there's no bright line rule on what the age of that information is" and denied the Motion to Suppress. (Id.).
While Petitioner disagrees with the argument made by his trial counsel, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Earp v. Cullen, 623 F.3d 1065, 1077 (9th Cir. 2010) (quoting Strickland, 466 U.S. at 690). Petitioner incorporates the argument made in his PCR petition that "had (trial) counsel actually provided case law and argued the motion, all evidence obtained would have been dismissed. . . ." (Doc. 1 at 13). The undersigned notes that the cases that Petitioner cited in his Opening Brief to support the staleness argument are from other jurisdictions. Petitioner fails to cite any precedent binding on an Arizona state court that would support his staleness argument. Petitioner has not shown how trial counsel's choice of argument as to the staleness issue rendered counsel's performance constitutionally deficient. Clark, 769 F.3d at 725. Accordingly, the undersigned concludes that the Arizona Court of Appeals did not unreasonably apply Strickland when it ruled that Petitioner failed to show deficient performance by his trial counsel.
Moreover, in its decision affirming Petitioner's convictions, the Arizona Court of Appeals found that:
(Doc. 10-5 at 57).
Given the Hale decision discussed in the Arizona Court of Appeals' decision above, Petitioner has failed to show that there is a substantial likelihood that the trial court would have granted Petitioner's Motion to Suppress had trial counsel made Petitioner's desired arguments. Bailey v. Newland, 263 F.3d 1022, 1029 (9th Cir. 2001) ("in order to show prejudice when a suppression issue provides the basis for an ineffectiveness claim, the petitioner must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome"). Therefore, the undersigned concludes that the Arizona Court of Appeals did not unreasonably apply Strickland when it ruled that Petitioner failed to show how he was prejudiced by the alleged deficient performance of his trial counsel.
In sum, Petitioner has failed to show that the Arizona Court of Appeals' decision denying his IAC claim regarding the Motion to Suppress was contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts.
In Ground Four, Petitioner alleges that his trial counsel was ineffective for failing to call two witnesses at trial: (i) Petitioner's girlfriend at the time, Charity Flint and (ii) Ms. Flint's sister, Rhiannon Flint. (Doc. 1 at 14). Petitioner asserts that these individuals "had direct personal knowledge that the safe found in [Petitioner's] residence belonged to Steve Hildreth" and "would have testified that [Petitioner] did not have a safe." (Id.).
The last reasoned state court decision on the above claim is the April 11, 2014 Arizona Court of Appeals' decision. Citing to Strickland, the Court of Appeals found that Petitioner:
(Doc. 10-5 at 58).
Reasonable tactical decisions, including decisions regarding counsel's presentation of a case, are "virtually unchallengeable." Strickland, 466 U.S. at 687-90. Disagreement with a reasonable tactical decision not to call a particular witness cannot form the basis of an IAC claim. Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001). However, a failure by trial counsel to conduct a reasonable investigation and present mitigating evidence may constitute ineffective assistance of counsel. Rompilla v. Beard, 545 U.S. 374, 383-84 (2005).
In presenting an IAC claim based on counsel's failure to call a witness, the petitioner must (i) identify the witness, United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985), cert. denied, 474 U.S. 979 (1985); (ii) show that the witness was available and willing to testify, United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988), cert. denied, 488 U.S. 910 (1988); and (iii) show that the witness' testimony would have been sufficient to create a reasonable probability that the jury would have had a reasonable doubt as to guilt, Tinsley v. Borg, 895 F.2d 520, 532 (9th Cir. 1990), cert. denied, 498 U.S. 1091 (1991). Further, IAC claims based on a duty to investigate and call relevant witnesses "must be considered in light of the strength of the government's case." Rios v. Rocha, 299 F.3d 796, 808-13 (9th Cir. 2002).
Here, although Petitioner disagrees with trial counsel's strategy not to call Charity and Rhiannon Flint as defense witnesses, that disagreement does not constitute deficient performance on the part of Petitioner's trial counsel. See Murray, 746 F.3d at 457 (a "defendant's disagreement with trial counsel's strategy does not constitute deficient performance on the part of trial counsel"). First, trial counsel could reasonably conclude that Charity and Rhiannon Flint would not be credible witnesses due to their admitted use of methamphetamine and marijuana. (Doc. 10-5 at 38-39). In addition, trial counsel could reasonably conclude that the women would not be helpful witnesses as they could have been impeached for bias. Charity was Petitioner's girlfriend and Rhiannon was Charity's sister. For these reasons, Petitioner has failed to show how trial counsel's performance fell below a standard of reasonableness under prevailing professional norms. Clark, 769 F.3d at 725. Accordingly, the Arizona Court of Appeals did not unreasonably apply Strickland in finding that Petitioner's IAC claim does not meet the performance prong of the Strickland test.
Given all of the evidence presented by the State, Petitioner has failed to establish that there is a "substantial, not just conceivable" likelihood of a different result if the jury had heard the testimony of Charity and Rhiannon Flint. See Richter, 562 U.S. at 112. Moreover, Petitioner has not presented any evidence that Charity and Rhiannon were available and willing to provide helpful testimony at the time of trial. Although Petitioner's PCR counsel hired an investigator to interview Charity and Rhiannon approximately two years after Petitioner's trial, neither woman stated that they were available and willing to testify at the trial. (Doc. 10-3 at 53-83). The undersigned concludes that the Arizona Court of Appeals did not unreasonably apply Strickland when finding that Petitioner failed to establish the prejudice prong of Strickland.
Accordingly, Petitioner has failed to show that the Arizona Court of Appeals' decision denying his IAC claim in Ground Four was contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts. The undersigned therefore recommends that the Court deny the claim on the merits.
Petitioner requests an evidentiary hearing. (Doc. 1 at 9). Review of Section 2254(d) claims "is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. As explained by the U.S. Supreme Court, allowing "a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo" would be contrary to the purpose of affording state courts the primary responsibility for considering a petitioner's claims. Id. at 1399 ("It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.").
Here, all of the grounds for relief in the Petition were adjudicated on the merits in Arizona state court. The undersigned has recommended that all of Petitioner's federal habeas claims should be denied. Where, as here, "the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) ("[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.") (emphasis in original). Therefore, the undersigned recommends that the Court deny Petitioner's request for an evidentiary hearing.
Parties in a habeas proceeding are not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir.), cert. denied, 540 U.S. 1013 (2003). Rather, "[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his [or her] discretion and for good cause shown grants leave to do so, but not otherwise." Rule 6(a), 28 U.S.C. foll. § 2254; see also Bracy, 520 U.S. at 904. Good cause is shown "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); see also Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005).
Here, Petitioner requests "the release of the C.D.s to the defense or transcriptions or taped interviews" of Charity Flint, Rhiannon Flint, Steve Hildreth, and Petitioner. (Doc. 1 at 16). The undersigned deems Petitioner's request as a request for discovery. Having reviewed Petitioner's claims, however, the undersigned does not find good cause to grant Petitioner leave to conduct further discovery since Petitioner cannot prevail on his claims for the reasons set forth in the preceding sections. Moreover, because Petitioner is not entitled to an evidentiary hearing, his request for discovery should be denied as futile. See Kemp v. Ryan, 638 F.3d 1245, 1258-60 (9th Cir. 2011), cert. denied, 132 S.Ct. 553 (2011) ("[B]ecause the district court was not authorized to hold an evidentiary hearing on Kemp's deliberate elicitation claim, obtaining discovery on that claim would have been futile.").
There is no constitutional right to counsel in a habeas proceeding. Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). "Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). However, pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts, "[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A." Even if an evidentiary hearing is not warranted, a district court has discretion to appoint counsel for a habeas petitioner when "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B).
Petitioner requests the appointment of counsel. (Doc. 1 at 9). The undersigned does not find that the interests of justice require the appointment of counsel in this case. Petitioner has failed to show that the complexities of the case are such that denial of appointed counsel would amount to a denial of due process. Moreover, Petitioner's filings with the Court indicate that Petitioner understands the issues and is capable of presenting his arguments to the Court. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming the denial of the appointment of counsel where a petitioner's pleadings demonstrated a good understanding of the issues and an ability to present contentions "forcefully and coherently"). Finally, the record is adequately developed and the undersigned does not find that an evidentiary hearing is necessary. For these reasons, the undersigned recommends that the Court deny Petitioner's request for appointment of counsel.
Based on the foregoing, the undersigned recommends that the Court deny Petitioner's requests for an evidentiary hearing, discovery, and the appointment of counsel. The undersigned further recommends that the Court deny and dismiss the Petition (Doc. 1) with prejudice.
Accordingly,
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely 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. Failure to file timely objections to any factual determinations of the Magistrate Judge may 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
