D. THOMAS FERRARO, Magistrate Judge.
Petitioner David Munoz, presently incarcerated at the Arizona State Prison-Meadows Unit, in Florence, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 14) and Petitioner's Reply (Doc. 15). The parties have consented to Magistrate Judge jurisdiction. (Doc. 12.)
Munoz was convicted in the Superior Court of Pima County on one count of sexual abuse, one count of sexual abuse of a minor under 15, molestation of a child, aggravated assault of a minor, and sexual abuse. (Doc. 14, Ex. E at 4.) On October 19, 2011, he was sentenced to a mix of concurrent and consecutive sentences, totally 28.5 years. (Id. at 8-9.)
The convictions were based on the following facts, as summarized by the appellate court:
(Doc. 14, Ex. A at 2.)
Munoz filed an appeal, and the Arizona Court of Appeals affirmed his convictions and sentences. (Id., Exs. A, H.) Munoz's request for review in the Arizona Supreme Court was denied. (Id., Exs. I, J.) Munoz filed a notice of post-conviction relief (PCR). (Id., Ex. K.) Appointed counsel found no claims for relief and the PCR court granted Munoz leave to file a pro se petition. (Id., Exs. L, M.) Munoz requested dismissal of the PCR proceeding, which was granted. (Id., Exs. N, O.)
Munoz raises one claim in his Petition, that the trial court's refusal to give a particular jury instruction denied him a fair trial in violation of due process. Respondents contend the claim is not cognizable and/or procedurally defaulted.
Munoz requested a jury instruction based on the prosecution's failure to preserve the victims' clothing. The requested instruction was based on State v. Willits, 393 P.2d 274, 96 Ariz. 184 (1964), and stated:
Munoz argued that DNA testing of the clothing could have contradicted the victims' statements about where they were touched. Also, examination of the clothes could have shown if their shirts were stretched or if the back side of F.G.'s clothes were dirty, which could contradict the victims' statements about the attack.
Andrea Gemson from the Tucson Police Department Crime Lab testified at a pre-trial hearing. (Doc. 14, Ex. G at 23-31.) She stated that, in her experience, it is rare to get results for touch (or trace) DNA on clothing, and she would likely not be able to tell where a touch occurred on the clothing because the DNA could have transferred from one spot to another. (Id. at 25-26.) The trial court denied Munoz's request from the bench:
(Id. at 37.)
The Arizona Court of Appeals went over the necessary showing for a Willits instruction: "the `defendant must show (1) that the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him, and (2) that this failure resulted in prejudice.'" (Doc. 14, Ex. A at 3 (quoting State v. Speer, 221 Ariz. 449, ¶ 40, 212 P.3d 787, 795 (2009).) In affirming the trial court's ruling and finding that Munoz's claim was "wholly speculative," the appellate court provided the following explanation:
(Doc. 14, Ex. A at 4 (internal citations and footnotes omitted).) The court also noted that Munoz acknowledged touching the victims on the buttocks, and Munoz's DNA was found under J.G.'s fingernails. (Id. at 4 nn.2, 4.)
Respondents argue that Munoz's claim — that the trial court failed to give a Willits instruction — is merely a state law claim and is not cognizable. The Supreme Court recognizes that a habeas court may review a claim alleging that the denial of a jury instruction so infected the entire trial that a petitioner was denied a fair trial as guaranteed by the Due Process clause. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). This is exactly what Munoz argues in his Petition.
Respondents argue that Munoz did not exhaust a federal due process claim in state court and, therefore, this claim is procedurally defaulted.
A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must "fairly present" the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).
In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
On appeal, Munoz argued that the trial court abused its discretion by denying the requested Willits instruction. Within the discussion, he cited the United States Constitution to support his argument that a defendant has a fair trial and due process right to proper jury instructions. (Doc. 14, Ex. H at 4.) Munoz also twice cited the case of Taylor v. Kentucky, 436 U.S. 478, 488-90 (1978), in which the Court held that a trial court had violated the Due Process Clause by denying a jury instruction on the presumption of innocence. (Id. at 5, 10.) Munoz concluded his brief by arguing that he was denied a fair trial, which is the constitutional Due Process right the Supreme Court found had been violated in Taylor. (Id. at 10.) Review of Munoz's appellate brief demonstrates that he fairly presented this claim to the Arizona Court of Appeals. Although the state appellate court did not expressly address the federal claim, because his appeal was denied this court presumes the claim was adjudicated on the merits. Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). Respondents have not rebutted that presumption. Therefore, the claim is properly exhausted and the Court will review it on the merits.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a "substantially higher threshold for habeas relief" with the "acknowledged purpose of `reducing delays in the execution of state and federal criminal sentences.'" Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA's "highly deferential standard for evaluating state-court rulings' . . . 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)).
Under the AEDPA, a petitioner is not entitled to habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication:
28 U.S.C. § 2254(d). The last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005).
A habeas court's review of a failure to give a jury instruction is limited to a determination of whether the failure so infected the entire trial that the defendant was deprived of his right to a fair trial. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). Because the omission of an instruction is less likely to be prejudicial than a misstatement of the law, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "especially heavy" burden. Henderson, 431 U.S. at 155.
The state court's denial of a Willits instruction did not violate Munoz's right to a fair trial. The trial court's denial was well-founded because Munoz did not show the evidence was material and tended to exonerate him. If the instruction had been given, the jury could have inferred that the victims' clothes would not have been dirty or stretched, and that Munoz's DNA would not have been detected on the clothes. The jury would not have been required to draw such an inference and, if they had, it is not a weighty one. The absence of DNA or damage to the clothing is not directly contradictory of the victims' testimony. And, in light of Gemson's testimony, the absence of DNA evidence would not have been probative.
Munoz was not denied the ability to present any theory of defense, he was denied only an inference about certain evidence. Even in the absence of the requested instruction, Munoz's counsel presented the defense, arguing that the victims' shirts were not soiled or stretched based on photographs that were presented to the jury. Munoz acknowledges that his counsel also argued that the police failed to collect the victims' clothing and that officers' testified it might have been of evidentiary value. Munoz has not met the heavy burden of demonstrating that the lack of a Willits instruction deprived him of a fair trial.
Munoz argues that the state court's fact finding was unreasonable, and he is entitled to relief under 28 U.S.C. § 2254(d)(2). This Court is not persuaded that Munoz has met the high standard of establishing that the state court's fact finding was objectively unreasonable. However, even if a petitioner satisfies section (d)(2), he is not automatically entitled to relief; rather, AEDPA deference no longer applies and the claim is reviewed de novo. See Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 2010); Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Because Munoz failed to establish that he was denied a fair trial, he cannot obtain relief under § 2254 (d)(1) or (d)(2).
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court must issue or deny a certificate of appealability (COA) at the time it issues a final order adverse to the applicant. A COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This showing can be established by demonstrating that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner" or that the issues were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). The Court finds that reasonable jurists could not debate that the merits of the claim should have been resolved differently. Therefore, a COA will not issue.
Accordingly,
