JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 16). On March 5, 2015, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that the Amended Petition be denied. (Doc. 43).
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, Petitioner filed objections to the R&R; accordingly, the Court will review the objected to recommendations 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"
In his Objections, Petitioner argues that his "pro se interference claim" was exhausted before the state courts; or alternatively, if it was not, his failure to exhaust should be excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012), as a result of his appellate counsel's ineffective assistance if that counsel failed to raise this claim on direct appeal.
In the R&R, the Magistrate Judge concludes that this claim was not exhausted in state court. Doc. 43 at 24. The R&R further concludes that this claim has been procedurally defaulted in state court at this time. Id. at 25-26. Finally the R&R concludes that Petitioner has not shown cause and prejudice to overcome this procedural default, nor a fundamental miscarriage of justice. Id. at 26.
In his objections, Petitioner argues that this claim was either directly exhausted, or sufficiently related to an exhausted claim that it should be deemed exhausted. Doc. 51 at 3-5. With regard to directly exhausting, Petitioner argues that he raised this claim in his Rule 32 Petition for Post-Conviction Relief before the state court, citing Exhibit II.
Exhibit II is Petitioner's Petition for Post-Conviction relief, which spans 144 pages, including exhibits (some of which appear to be duplicates). Doc 25-4 starting at page 32. While Petitioner is correct that some of his over 100 pages of exhibits perhaps support his pro se interference claim, this Court does not see where that claim was labeled as such specifically to the post-conviction relief court. Further, when Petitioner filed his Petition for Review of the denial of his Petition for Post-Conviction Relief with the Arizona Court of Appeals, he did not list a pro se interference claim as a claim raised in his Rule 32 Petition. See Doc. 25-6 at 1-3. Consistent with Petitioner's Petition for Post-Conviction Relief and his Petition for Review with the Arizona Court of Appeals, the Arizona Court of Appeals did not address a pro se interference claim. Doc. 25-6 at 47-52. On this record, this Court agrees with the R&R that Petitioner's pro se interference claim was not raised to the state courts directly. See Doc. 43 at 24.
Next Petitioner argues that under Lounsbury v. Thompson, 374 F.3d 785, 788 (9th 2004), the claims he raised in his Petition for Post-Conviction relief were sufficiently related to his pro se interference claim that this Court should deem them exhausted. Doc. 51 at 4. This Court agrees with the R&R that while some of the underlying facts are the same, this legal theory was never presented to the state courts, and is not exhausted. See Doc. 43 at 25.
Finally, Petitioner argues that if his pro se interference claim is not exhausted, his failure to exhaust should be excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012). Specifically, Petitioner argues that his failure to exhaust this claim was due to the ineffective assistance of his appellate counsel in failing to raise it on direct appeal; and ineffective assistance of his post-conviction relief counsel for failing to raise the ineffective assistance of appellate counsel in the Rule 32 Petition for Post-Conviction Relief. Doc. 51 at 5-8.
At pages 17 and 18, the R&R discussed when a Martinez claim can excuse the procedural default of ineffective assistance of counsel claims in state court. However, the R&R failed to analyze any of Petitioner's defaulted claims under Martinez.
As this Court has previously stated, Martinez (although the opinion suggests otherwise) requires this Court to reach the merits of every claim that is defaulted when the Petitioner claims the default was based on ineffective assistance of counsel. Saenz v. Van Winkle, CV-13-77-PHX-JAT at 4 (D. Ariz. July 2, 2014); Martinez v. Ryan, 2012 WL 5936566, *2-3 (D. Ariz. Nov. 27, 2102) (holding that for this Court to consider the three steps required to excuse procedural default articulated in the Martinez Supreme Court decision, this Court must begin with a review of whether trial or appellate counsel was ineffective, rather than whether PCR counsel was ineffective).
Petitioner's theory of his pro se interference claim is best summarized by McKaskle as follows:
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (referencing Faretta v. California, 422 U.S. 806 (1975)).
However,
Savage v. Estelle, 924 F.2d 1459, 1463 n. 7 (9th Cir. 1990).
In this case, Petitioner had his standby counsel question him when he was on the stand at trial. Doc. 43 at 23. Petitioner now claims that his standby counsel asked questions other than the questions Petitioner wanted him to ask. Doc. 51 at 11. Petitioner has gone through the transcript of his questioning and circled at least 50 questions that he now claims were not the questions he wanted to have asked. Doc. 25-4 at 41-62 (attachments to Petitioner's Petition for Post-Conviction relief in state court).
As both McKaskle and Savage require, for Petitioner to make a pro se interference claim, he must object
Because Petitioner's pro se interference claim fails on the merits, Petitioner's appellate counsel was not ineffective for failing to raise it on direct appeal. Accordingly, this claim is not substantial; thus, Petitioner's procedural default of this claim is not excused under Martinez.
Petitioner's claim that advisory/sentencing counsel was ineffective was raised before the Arizona Courts in Petitioner's Petition for Post-Conviction relief. As discussed above, as to any claim exhausted before the state courts, this Court can only grant habeas relief if the "state court decision [was] contrary to, or involved an unreasonable application of, clearly established Federal law" or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
First, if a defendant elects to waive counsel, but the court nonetheless appoints stand by counsel or advisory counsel, there is no constitutional right to effective assistance from waived counsel. Cf. Faretta v. California, 422 U.S. 806, 834, n. 46 (1975) (A defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.). Therefore, to the extent Petitioner is attempting to make an ineffective assistance of counsel argument regarding advisory counsel, the claim fails.
Second, regarding counsel's performance at sentencing,
This Court will not consider this additional evidence because,
Murray v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014).
Accordingly, the Court overrules the objections on this claim (which appears to be part of claim six of the Amended Petition (Doc. 16 at 22)) and denies relief.
In his objections, Petitioner also raises the following (the quoted portions below are Petitioner's entire objection as to each claim):
Doc. 51 at 13.
The Court has reviewed the R&R at 27 de novo on this claim and overrules this objection. Accordingly, the Court accepts and adopts the R&R on Claim 2.
Doc. 51 at 13.
The Court has reviewed the R&R at 28-29 de novo on this claim and overrules this objection. Accordingly, the Court accepts and adopts the R&R on Claim 3.
Doc. 51 at 13.
The Court has reviewed the R&R at 29-32 de novo on this claim and overrules this objection. Accordingly, the Court accepts and adopts the R&R on Claim 4.
Doc. 51 at 13.
First, the Court finds that this sentence fragment is insufficient to raise a legal or factual objection to the R&R. Second, nonetheless, the Court has reviewed the R&R at 32-33 de novo on this claim and overrules this "objection." Accordingly, the Court accepts and adopts the R&R on Claim 5.
Doc. 51 at 14.
This Court has already addressed and denied relief on Petitioner's claims of ineffective assistance of appellate counsel in section 1 above. To the extent Petitioner intends to argue a different theory of ineffective assistance of appellate counsel by this single sentence fragment, the Court has reviewed the R&R at 37-38 as to Claim 9 de novo. The Court overrules this objection and accepts and adopts the R&R on Claim 9.
Doc. 51 at 14.
The Court has reviewed the R&R at 38-39 de novo on this claim and overrules this objection. Accordingly, the Court accepts and adopts the R&R on Claim 10.
Doc. 51 at 14.
The Court has reviewed the R&R at 40-41 de novo on this claim and overrules this objection. Accordingly, the Court accepts and adopts the R&R on Claim 11.
Doc. 51 at 14.
The Court has reviewed the R&R at 41-42 de novo on this claim and overrules this objection. Accordingly, the Court accepts and adopts the R&R on Claim 12.
On April 8, 2015, the Court ordered that Petitioner could file only objections in response to the R&R and not unlimited, various filings. The Court received an undated filing on April 10, 2015 (Doc. 50), which the Court assumes was mailed before Petitioner received the April 8, 2015 Order. Consistent with the April 8 Order, the April 10 filing will be stricken.
On April 22, 2015, the Court received Petitioner objections in compliance with the April 8, 2015 Order. Those objections have been addressed above.
On April 27, 2015, in direct violation of the April 8, 2015 Order, the Court received a motion for stay and abeyance (Doc. 52). The Court will not consider the motion for two reasons. First, the Court was clear in the April 8, 2015 order that Petitioner was required to raise all of his objections and arguments in a single document.
Second, the motion itself highlights the reason behind the April 8, 2015 Order. Specifically, in his objections, Petitioner states, "[Petitioner] is not required to return to state court to present New Evidence: 32.1(e); because
The Court will not undertake to read multiple documents to determine what Petitioner is arguing. Further, the Court will not attempt to guess, when those documents are absolutely inconsistent, which argument Petitioner is advancing. Instead, as the Court advised Petitioner in the April 8, 2015 Order, the Court will consider only the objections to the R&R.
Based on the foregoing,
