JAMES F. METCALF, Magistrate Judge.
Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 11, 2016 (Doc. 10). On April 28, 2016, Respondents filed their Answer (Doc. 12). Petitioner filed a Reply on May 16, 2016 (Doc. 15), supplemented with an "Amended Reply" with omitted pages on May 23, 2016 (Doc. 17). Respondents filed a Supplemental Answer (Doc. 19) on October 6, 2016, and Plaintiff filed his Supplemental Reply (Doc. 20) on October 17, 2016.
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
On August 31, 2009, Petitioner was indicted in Maricopa County Superior Court, case number CR2009-007454. (Exhibit A, Indictment) (Exhibits to the Answer, Doc. 12 (Exhibits A to L) and the Supplemental Answer, Doc. 19 (Exhibits M to O), are referenced herein as "Exhibit ___.")
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
(Exhibit C, Mem. Dec. 10/16/12 at ¶ 2.)
Petitioner eventually proceeded to a jury trial, and was convicted as charged, and was sentenced to an aggregate term of 12 years' imprisonment. (Id.; Exhibit D, Sentence 1/14/11.) The trial court enhanced the range of sentence based on Petitioner's prior class 6 felony conviction in 2005 for presenting a false instrument for filing on October 4, 2002. (Exhibit D, Sentence 1/14/11 at 4.)
Petitioner filed a timely direct appeal arguing the trial court erred in three ways: (1) improperly commenting on the evidence in a final jury instruction; (2) not sua sponte ordering a mistrial as a result of questioning by the prosecutor about prior conduct; (3) limiting his testimony about the prior conviction. (Exhibit J, Opening Brief.)
On October 16, 2012, the Arizona Court of Appeals issued its Memorandum Decision (Exhibit C) affirming Petitioner's convictions and sentences. (Id. at ¶ 17.) The court concluded that the trial court did not improperly comment on the evidence, but properly instructed the jury. (Id. at ¶¶ 3-10.) The court concluded the question by the prosecution was about prior conduct, not a prior conviction, and the court properly struck the question and directed the jury to disregard, and thus a mistrial was not appropriate. (Id. at ¶¶ 11-13.) Finally, the court concluded that the trial court did not abuse its discretion in ruling on the use of the sanitized prior conviction, allowed Petitioner to testify as he wished and merely cautioned Petitioner that the prosecution would be allowed rebuttal if Petitioner went into the particulars of the prior. (Id. at ¶¶ 14-16.)
In his Amended Petition, Petitioner alleges he sought review of his direct appeal by the Arizona Supreme Court, but provides no details on its filing. (Doc. 10 at 3.) Respondents allege none was filed. (Answer, Doc. 12 at 3.) Petitioner appends to his Reply (Docs. 15/17) as Exhibit C what he identifies as his "Direct Appeal Appellants Opening Brief and Petition for Review." (Id. at 7.) What is appended is his June, 2014 Amended Petition for Review to the Arizona Court of Appeals in case 1 CA-CR 13-0811.PRPC. (Id. at 103.) That is the case number for his PCR proceeding. (See Exhibit B, Mem. Dec. 4/28/15.)
The mandate of the Arizona Court of Appeals reflects no motion for reconsideration or petition for review was filed. (Exhibit E, Mandate 11/30/12.) Petitioner did file a petition for review by the Arizona Supreme Court in his Post-Conviction Relief Proceedings addressed below. (Exhibit I, Order 10/30/15 (denying PFR).) Based on this record, the undersigned finds that Petitioner did not seek review by the Arizona Supreme Court in his direct appeal proceedings.
On or about November 7, 2012, shortly after the Arizona Court of Appeals' decision rejecting Petitioner's direct appeal, Petitioner filed a Notice of Post-Conviction Relief (PCR). (Exhibit F, M.E. 11/71/12 (appointing counsel).). Counsel was appointed, who eventually filed a notice of inability to bring a colorable claim on appeal. (Exhibit B, Mem. Dec. 4/28/15 at ¶ 2.) Petitioner proceeded to file a pro se PCR petition (Exhibit G.) His petition raised several ineffective assistance of counsel claims and an appellate ineffective assistance of counsel claim, all under Strickland v. Washington, 466 U.S. 668 (1984).
In a detailed seven-page minute entry, the judge, who had presided over Petitioner's trial, did not find any of Petitioner's claims colorable and dismissed his PCR petition. (Exhibit H, M.E. 7/19/13.)
Petitioner then sought review by the Arizona Court of Appeals, filing an original Petition for Review (Exhibit L) on November 12, 2013, and then submitting an Amended Petition for Review on or about June 6, 2014 (Exhibit M), which was not accepted for filing. (Amend. Petition, Doc. 1, Exhibit D, Petitioner's Reply Brief at 1-2.)
Petitioner asserted the following bases for relief in the original Petition for Review: (1) the trial court erred in concluding trial counsel was not ineffective; (2) the trial court erred in concluding that appellate counsel was not ineffective; and (3) the trial court erred in failing to designate Petitioner's prior conviction as a misdemeanor. (Exhibit L).
While the Arizona Court of Appeals granted review, the Court denied any relief to petitioner. The court rejected claims of ineffective assistance of trial counsel on: (a) failure to call lay and expert witnesses (Exhibit B, Mem. Dec. 4/28/15 at ¶ 4); (b) failure to investigate other mortgage programs (id.); (c) failure to offer evidence of a promissory note, 1933 congressional resolution, and an internet article (id. at 5, 6); (d) failure to object to testimony about other conduct by Petitioner (id. at ¶ 7); (e) failure to adequately advise Petitioner on testimony permitted at trial (id. at ¶ 8); (f) failure to move for a mistrial based on the court's comments on the evidence (id. at ¶ 9); (g) failure to object to a question regarding previous conduct by Petitioner (id.); and (h) failure to object to questions regarding Petitioner's religion (id.). The court also rejected the claim of ineffective assistance of appellate counsel. (Id. at ¶ 10.) The court denied review of the claim regarding the prior conviction because Petitioner "did not raise this issue as part of his Rule 32 proceedings below." (Id. at 11.) Additionally, the Court noted that if Petitioner wished to challenge the prior conviction, he had to do it with a timely petition for post-conviction relief in that specific case, not the case in which the conviction was used to enhance the sentencing range. (Id.)
Petitioner then sought review by the Arizona Supreme Court. (Amend. Petition, Doc. 10 at Exhibit D, Petition for Review 6/17/15.) On October 30, 2015, that court summarily denied review. (Exhibit I, Order 10/30/15).
On February 3, 2014, during the pendency of his PCR proceedings before the Arizona Court of Appeals, Petitioner filed a Petition for Special Action (Exhibit N), arguing that the PCR court judge violated his due process rights by ruling against him in his PCR petition. On February 7, 2014, The Arizona Court of Appeals declined to accept jurisdiction of the Petition. (Exhibit O)
(Order 3/15/16, Doc. 6 at 2.) Service and an answer were ordered. (Id. at 3.)
On April 11, 2016, before an answer was filed, Petitioner filed an Amended Petition (Doc. 10). In his Amended Petition, Petitioner repeated his Grounds 1 and 2, but added a new Ground 3 and 4, as well as attaching a variety of exhibits. Grounds 3 and 4 added the following claims:
(Order 4/13/16, Doc. 11).
On October 6, 2016, Respondents filed their Supplemental Answer (Doc. 19), providing additional records (Exhibits M, N, and O), raising Arizona's time bar and waiver ("preclusion") bar (id. at 3), and arguing that Petitioner's claims are precluded under Arizona's waiver bar, Ariz. R. Crim. Proc. 32.2(a)(3) (id. at 4-6).
On October 17, 2016, Petitioner filed his Supplemental Reply (Doc. 20), arguing his pro se status without benefit of a law library as a basis for "leniency in Petitioners Response's [sic]," the merits of his claims, his attempts to exhaust state remedies, and the constitutional nature of his claims.
Respondents argue that some of Petitioner's claims are either procedurally defaulted or were procedurally barred on an independent and adequate state ground, and thus are barred from federal habeas review.
Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982).
Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. "A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).
Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a "miscarriage of justice" which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents rely upon Arizona's waiver bar, set out in Ariz. R. Crim. Proc. 32.2(a). (Supplemental Answer, Doc. 19 at 4-6.) Although Respondents have also referenced Arizona's time limit bar, set out in Ariz. R. Crim. P. 32.4 (id. at 3), Respondents make no argument that it applies to Petitioner's claims (id. at 4-6).
For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, `'knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights "that can only be waived by a defendant personally." State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at "the nature of the right allegedly affected by counsel's ineffective performance. Id.
Here, none of Petitioner's claims are of the sort requiring a personal waiver, and Petitioner's claims of ineffective assistance similarly have at their core the kinds of claims not within the types identified as requiring a personal waiver.
Ariz.R.Crim.P. 32.1.
Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Where a claim is based on "newly discovered evidence" that has previously been presented to the state courts, the evidence is no longer "newly discovered" and paragraph (e) has no application. Here, Petitioner has long ago asserted the facts underlying his claims. Paragraph (f) has no application where the petitioner filed a timely notice of post-conviction relief. Paragraph (g) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no application to the procedural claims Petitioner asserts in this proceeding.
Therefore, none of the exceptions apply, and Arizona's waiver bar would prevent Petitioner from returning to state court. Thus, Petitioner's claims that were not fairly presented are all now procedurally defaulted.
Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. "[A]bsent showings of `cause' and `prejudice,' federal habeas relief will be unavailable when (1) `a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) `the state judgment rests on independent and adequate state procedural grounds.'" Walker v. Martin, 562 U.S. 307, 316 (2011).
In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.
Id. at 584-585.
Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The federal courts have routinely held that it is. "Arizona's waiver rules are independent and adequate bases for denying relief." Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir.) cert. denied, 135 S.Ct. 710 (2014). See also Stewart v. Smith, 536 U.S. 856, 861 (2002) (Arizona's waiver rule is independent of federal law); and Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (adequate because consistently and regularly applied).
Here, Petitioner has made three forays to the Arizona Court of Appeals, on direct appeal, on post-conviction relief, and in his Petition for Special Action.
Where a claim is cognizable in the Arizona courts on direct appeal or in a Rule 32 post-conviction relief proceeding, presenting it in a state habeas petition or petition for special action is not adequate to exhaust state remedies. Roettgen, 33 F.3d at 38. "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Id. (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
In Ground One, Petitioner asserts that (a) he received ineffective assistance of counsel, based on counsel's failure to: (1) present a competent defense, (2) call expert witnesses, (3) offer evidence on Petitioner's behalf, (4) object to hearsay, (5) allow Petitioner to testify, and (6) move for a mistrial upon admission of evidence on a sanitized historical prior. He also asserts that (b) his Sixth Amendment right to compulsory process and his Fourteenth Amendment right to equal protection were violated because counsel prevented him from testifying.
Respondents argue that Petitioner's claim of ineffective assistance was not properly exhausted and is now procedurally defaulted under Arizona's waiver bar. (Supp. Ans., Doc. 19 at 4-5.)
Petitioner replies that he attempted to exhaust. (Supp. Reply, Doc. 20 at 2.)
Petitioner did not raise any claims of ineffective assistance on direct appeal. (See Exhibit J, Opening Brief.) He did, however, raise various claims of ineffective assistance in his Petition for Review ("PFR") (Exhibit L) in his PCR proceeding.
Ineffective assistance claims are not fungible, but must each be specifically argued. See Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982) (presentation of "additional facts of attorney incompetence" transformed claim into one not presented to state court); and Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (rejecting argument that presentation of any claim of ineffectiveness results in fair presentation of all claims of ineffective assistance).
In Ground 1(a)(1), Petitioner argues counsel was ineffective for failing to present a defense. Petitioner argued in his PFR that trial counsel failed to call any witnesses in his behalf. (Exhibit L at 6.) The Arizona Court of Appeals addressed this claim (referring to the failure to call "lay and expert witnesses). (Exhibit B, Mem. Dec. 4/28/15 at ¶ 4.) Thus, to the extent that Petitioner's present claim relates to the failure to call witnesses, his claim was fairly presented and addressed on the merits, and thus his state remedies were exhausted.
However, to the extent that Petitioner now intends to assert that there were other unspecified failures that amounted to failure to present a competent defense, Petitioner did not fairly present such a claim and it is now procedurally defaulted.
In Ground 1(a)(2), Petitioner argues that counsel was ineffective for failing to call expert witnesses. Petitioner argued in his PFR that counsel failed to call an expert witness from the banking industry. (Exhibit L at 6-7, 8.) The Arizona Court of Appeals addressed this claim, albeit concluding that it was conclusory because Petitioner had failed to provide affidavits from the proposed witnesses. (Exhibit B, Mem. Dec. 4/28/15 at ¶ 4.) Thus, to the extent that Petitioner's present claim relates to the failure to call a banking expert, his claim was fairly presented and addressed on the merits, and thus his state remedies were exhausted.
However, to the extent that Petitioner now intends to assert that there were other expert witnesses that counsel should have called, Petitioner did not fairly present such a claim and it is now procedurally defaulted.
In Ground 1(a)(3), Petitioner argues that trial counsel was ineffective for failing to offer evidence in Petitioner's behalf. Petitioner argued in his PFR that counsel failed to investigate and present various documentary evidence. (Exhibit L at 7, 9.) The Arizona Court of Appeals addressed this claim, concluding that counsel could have made a reasonable strategic decision to not offer the documents. (Exhibit B, Mem. Dec. 4/28/15 at ¶ 5.) Thus, this claim was fairly presented and addressed on the merits, and thus Petitioner's state remedies on it were properly exhausted.
In Ground 1(a)(4), Petitioner argues that trial counsel was ineffective for filing to object to hearsay. Petitioner made no argument in his PFR regarding a failure to object to hearsay. (See generally Exhibit L.) At most, Petitioner complained that counsel "failed to object to FBI agent's testimony," (id. at 7), but made no reference to a basis for a hearsay objection. Nor did the Arizona Court of Appeals address such a claim. (See generally Exhibit B, Mem. Dec. 4/28/15.) Accordingly, Petitioner did not fairly present such a claim and it is now procedurally defaulted.
In Ground 1(a)(5), Petitioner argues that trial counsel was ineffective for failing to allow Petitioner to testify. Petitioner made no such argument in his PFR, and at most complained that counsel inadequately advised Petitioner about what he could and could not say. (Exhibit L, PFR at 9.) Nor did the Arizona Court of Appeals address such a claim. (See generally Exhibit B, Mem. Dec. 4/28/15.) Accordingly, Petitioner did not fairly present such a claim and it is now procedurally defaulted.
Finally, in Ground 1(a)(6) Petitioner argues that trial counsel should have moved for a mistrial "when State inquired about a historical prior that was sanitized." (Amend. Pet. Doc. 10 at 6.) In his PFR, Petitioner did argue that counsel was ineffective for failing to move for a mistrial, but that was limited to a motion based on "when the court improperly commented on the evidence" by admonishing that the law did not authorize Petitioner's actions, and based on "questions that referenced religion and...questions re fraudulent documents." (Exhibit L, PFR at 9, 7.) The Arizona Court of Appeals addressed those claims, but did not address a claim regarding a sanitized prior. (Exhibit B, Mem. Dec. 4/28/15 at ¶ 9.) Those are fundamentally different claims from the one Petitioner now raises, focusing on very different events, i.e. questioning about a sanitized prior conviction vs. admonishments by the court or questions about other fraudulent documents or religion.
Additionally, Petitioner did assert a claim on direct appeal that questions which he described as being directed to a prior conviction should have resulted in a mistrial. But he did not present this as a claim of ineffective assistance of counsel. Presenting the related underlying claim does not exhaust the claim of ineffective assistance. "While [the ineffective assistance and underlying constitutional claim are] admittedly related, they are distinct claims with separate elements of proof, and each claim should have been separately and specifically presented to the state courts." Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005).
Accordingly, Petitioner did not fairly present this claim and it is now procedurally defaulted.
Despite it being recognized in the Service Order (Doc. 11), Respondents do not separately address the exhaustion of Petitioner's Sixth Amendment Compulsory Process and Fourteenth Amendment claims. Petitioner argues that the State violated his Sixth Amendment and Due Process "right to have compulsory process for obtaining witnesses" and denied Petitioner equal protection as guaranteed by the Fourteenth Amendment. (Amend. Pet., Doc. 10 at 6.)
In his PFR, Petitioner did reference his Sixth Amendment right to compulsory process, but did so only as part of his argument that counsel was deficient for failing to call witnesses. (Exhibit L, PFR at 6.) The Arizona Court of Appeals did not address a compulsory process claim. (Exhibit B, Mem. Dec. 4/28/15.) Presenting the related underlying claim does not exhaust the claim of ineffective assistance. Rose, 395 F.3d at 1112. Accordingly, Petitioner did not fairly present this claim and it is now procedurally defaulted.
Finally, Petitioner did argue in his PFR that he was denied his Fourteenth Amendment rights, but the arguments he raised were under the due process clause, not an equal protection claim. (Exhibit L, PFR at 9, 13.) The Arizona Court of Appeals did not address an equal protection claim. (Exhibit B, Mem. Dec. 4/28/15.) Accordingly, Petitioner did not fairly present this claim and it is now procedurally defaulted.
In Ground 2, Petitioner argues that his Sixth and Fourteenth Amendment rights were violated because the trial court treated a prior conviction, which Petitioner claims was supposed to have been reduced to a misdemeanor following the successful completion of probation, as a felony and used it to enhance Petitioner's sentences in this case.
Respondents argue that this claim was procedurally barred by the Arizona Court of Appeals based upon Petitioner's failure to raise it to the trial court. (Supp. Answer at 5.) Petitioner simply replies on the basis of the merits of the claim. (Supp. Reply at 2.)
Indeed, Petitioner argued the purported sentencing error and argued that it amounted to a violation of "Due Process of the U.S. Constitution 14th Amendment." (Exhibit L, PFR at 13.) The Arizona Court of Appeals addressed the claim, and opined:
(Exhibit B, Mem. Dec. 4/28/15 at ¶ 11 (citing inter alia Ariz. R.Crim. P. 32.9(c)(l)(ii)).)
Rule 32.9(c)(1)(ii) requires that a petition for review contain: "The issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review." See also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (Ariz.App., 1980) (issues first presented in petition for review and not presented to trial court not subject to review).
Respondents have not identified or argued Rule 32.9(c)(1)(ii) as a procedural bar. If Respondents were now relying upon it as a basis for procedural default of an unpresented claim, the undersigned would treat the failure to argue the rule as a waiver of the procedural default for two reasons. First, the defense would be deemed waived based upon failure to comply with the Court's order mandating that the procedural bars relied upon as a bases for procedural default be explicitly identified for each claim. (See Order 4/4/16, Doc. 9 at 2; Order 9/28/16, Doc. 18 at 3.) Second, the failure to identify such bases deprives Petitioner of a fair opportunity to refute the defense. (See Order 9/28/16, Doc. 18 at 2.)
But here the actual application of the bar is explicit within the opinion of the Arizona Court of Appeals. Thus, Petitioner has had a fair opportunity to identify and address the issue.
Thus, the undersigned concludes that Petitioner's due process claim in Ground 2 was procedurally barred by application of Rule 32.9(c)(1)(ii). Petitioner presents nothing to suggest that Rule 32.9(c)(1)(ii) is not an independent and adequate state bar.
In Ground 3, Petitioner argues claims of malicious prosecution and false imprisonment in violation of the 14th Amendment, based upon the expiration of the statute of limitations, and reliance upon the misdemeanor prior.
Respondents again recognize only a portion of Petitioner's claim, casting it as a simple argument that the state violated the statute of limitations. (Supp. Ans., Doc. 19 at 2.) Respondents argue this abbreviated claim was unexhausted and is now waived. (Id. at 5.) Petitioner replies based on the merits.
Petitioner raised no arguments regarding the statute of limitations, malicious prosecution, or false imprisonment on direct appeal (see generally Exhibit J, Opening Brief), or in his PFR (see generally Exhibit L). The Arizona Court of Appeals did not address any such claims on direct appeal (see generally Exhibit C, Mem. Dec. 10/16/12), or on petition for review in the PCR proceeding (see generally Exhibit B, Mem. Dec. 4/28/15).
The only portion of Ground Three ever presented to the Arizona Court of Appeals was Petitioner's arguments regarding the classification of the prior as a misdemeanor addressed herein above with regard to Ground 2. However, Petitioner did not case that error in terms of malicious prosecution or false imprisonment, and the Arizona Court of Appeals did not address it on that basis.
Accordingly, none of Ground Three was fairly presented to the Arizona Court of Appeals, and the entire ground is now procedurally defaulted.
In Ground 4, Petitioner argues that various constitutional rights were violated based on the trial court's purported comments on the evidence, failure to declare a mistrial based upon questions about prior bad acts, and by improperly limiting the scope of Petitioner's testimony.
Respondents argue, in essence, that Petitioner raised the underlying facts as state law claims on direct appeal, but did not raise them as a federal claims, and his federal claims are now waived under Rule 32.2(a)(3). (Supp. Ans., Doc. 19 at 5-6.)
Petitioner complains that Respondents are inconsistent on whether these claims were argued and then asserts that exhaustion was attempted through his special action. (Supp. Reply, Doc. 20 at 3.) As discussed hereinabove, presentation in the petition for special action did not result in proper exhaustion of state remedies.
It is true that the underlying facts and state law claims of Ground 4 were raised by Petitioner on direct appeal. He argued that the trial court improperly commented on the evidence (Exhibit J, Opening Brief at 28-30), erred in not declaring a mistrial based on the prior bad acts questions (id. at 31-33), and improperly limited Petitioner's testimony (id. at 34-36). However, Petitioner did not assert any federal constitutional basis for any of these claims. Instead, he raised them solely as state law claims. Failure to alert the state court to the federal, constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan, 513 U.S. at 366. It is not enough that a "somewhat similar state law claim was made." Anderson, 459 U.S. at 6.
Based upon the foregoing, the undersigned concludes that Petitioner
Also based the undersigned concludes that Petitioner has
Finally, based on the foregoing, the undersigned concludes that Petitioner was
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of "cause and prejudice" sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court `has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13), cert. denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:
Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
Petitioner makes no explicit argument regarding cause and prejudice. He does, however raise several arguments that would suggest that this Court should find cause to excuse his procedural defaults, including: (1) his pro se status in this proceeding, and limited access to legal resources (Amend. Reply, Doc. 17 at 1); (2) with regard to Ground Three, he only recently learned of the statute of limitations and his constitutional right to equal protection (Id. at 4) and the court refused to take Petitioner's documents (Amend. Petition, Doc. 10 at 8).
The "cause and prejudice" standard is equally applicable to pro se litigants, Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986), whether literate and assisted by "jailhouse lawyers", Tacho, 862 F.2d at 1381; illiterate and unaided, Hughes, 800 F.2d at 909, or non-English speaking. Vasquez v. Lockhart, 867 F.2d 1056, 1058 (9th Cir. 1988), cert. denied, 490 U.S. 1100 (1989).
Of course, Petitioner's filings in this action must be read in light of his pro se status. "We must construe pro se habeas filings liberally, and may treat the allegations of a verified complaint or petition as an affidavit." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). But that does not permit the Court to manufacture bases for cause and prejudice.
Moreover, any current difficulties Petitioner faces in litigating his claims would not excuse his failings to exhaust his state remedies in his state court proceedings. Further, Petitioner had the benefit of counsel in both his state direct appeal and his state petition for post-conviction relief.
Nor does he show that the proffered amended petition fairly presented his claims in Ground Three. In Ground 3, Petitioner argues claims of malicious prosecution and false imprisonment in violation of the 14th Amendment, based upon the expiration of the statute of limitations, and reliance upon the misdemeanor prior. Petitioner's Amended Petition for Review did not raise any claims of malicious prosecution or false imprisonment, nor did it raise a statute of limitation defense. Rather the Amended Petition for Review simply argued that the prior conviction was improperly designated as a felony in violation of his plea agreement (Exhibit M at 14, et seq.) and that PCR counsel was ineffective (id. at 19, et seq.).
Both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.
The standard for "cause and prejudice" is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a "miscarriage of justice." Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although not explicitly limited to actual innocence claims, the Supreme Court has not yet recognized a "miscarriage of justice" exception to exhaustion outside of actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).
A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. This standard is referred to as the "Schlup gateway." Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002)..
Petitioner proffers nothing to show that no reasonable juror would have found him guilty. At best, Petitioner makes conclusory arguments that had a 1933 Mortgage Abatement Program and unspecified testimony by unidentified witnesses and Petitioner been presented at trial, he would not have been convicted. (Amended Reply, Doc. 17 at 2.) Petitioner fails to explain how such evidence would show his innocence, let alone meet the exacting standards for a claim of procedural actual innocence. Such conclusory arguments do not meet Petitioner's burden under Schlup.
Accordingly his procedurally defaulted and procedurally barred claims must be dismissed with prejudice.
Petitioner has properly exhausted his state remedies as to: (1) the portion of Ground 1(a)(1) based upon counsel's failure to call witnesses; (2) the portion of Ground 1(a)(2) based upon counsel's failure to call a banking expert; and (3) Ground 1(a)(3) (ineffectiveness re documents).
Moreover, a state prisoner is not free to attempt to retry his case in the federal courts by presenting new evidence. There is a well-established presumption of correctness of state court findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence."
There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should "presume that the attorneys made reasonable judgments and decline to second guess strategic choices." U.S. v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000).
An objective standard applies to proving such deficient performance, and requires a petitioner to demonstrate that counsel's actions were "outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense." United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting Strickland, 466 U.S. at 687-90). The reasonableness of counsel's actions is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689.
"The law does not require counsel to raise every available nonfrivolous defense. Counsel also is not required to have a tactical reason—above and beyond a reasonable appraisal of a claim's dismal prospects for success—for recommending that a weak claim be dropped altogether." Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citations omitted).
Moreover, it is clear that the failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
In the exhausted portion of Ground 1(a)(1), Petitioner argues that trial counsel was ineffective for failing to call witnesses to testify in his behalf. Respondents argue that Petitioner has failed to adequately support this claim with testimony of the intended witnesses, and thus the state court properly rejected it. (Answer, Doc. 12 at 12-13.)
Indeed, the Arizona Court of Appeals rejected this claim, stating: "Because Carpenter did not provide affidavits from the witnesses containing the testimony they would have provided, Carpenter has failed to present a colorable claim." (Exhibit B, Mem. Dec. 4/28/15 at ¶ 4.)
A petitioner may not simply speculate about what a witness' testimony might be, but must adduce evidence to show what it would have been. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). "[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim." U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).
Here, Petitioner does not merely speculate about potential witnesses' testimony, but leaves this Court, as he left the state court, to speculate on its own about such testimony.
Under these circumstances, this claim of ineffective assistance is conclusory and without merit, and Petitioner fails to show that he is entitled to relief under 28 U.S.C. § 2254(d).
Similarly, Petitioner fails to support his claim in Ground 1(a)(2) with anything more than bald speculation that banking experts would have proffered exculpating testimony. Indeed, the Arizona Court of Appeals observed: "Carpenter conceded in the reply he filed below that he did not know what testimony any `banking experts' could have provided." (Exhibit B, Mem. Dec. 4/28/15 at ¶ 4 n.1)
Under these circumstances, this claim of ineffective assistance is conclusory and without merit, and Petitioner fails to show that he is entitled to relief under 28 U.S.C. § 2254(d).
In Ground 1(a)(3), Petitioner argues that counsel failed to present various documentary evidence. Respondents argue that the Arizona Court of Appeals properly concluded that Petitioner had failed to show deficient performance. (Answer, Doc. 12 at 13.)
The state court opined:
(Exhibit B, Mem. Dec. 4/28/15 at ¶¶ 5-6.)
Petitioner proffers nothing to show that this decision was an unreasonable determination of the facts.
Nor does Petitioner show that it was an unreasonable application of or contrary to federal law. There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. United States v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should "presume that the attorneys made reasonable judgments and decline to second guess strategic choices." United States v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000). The court need not determine the actual reason for an attorney's actions, as long as the act falls within the range of reasonable representation. Morris v. California, 966 F.2d 448, 456-457 (9th Cir. 1991), cert. denied, 113 S.Ct. 96 (1992). Tactical decisions with which a defendant disagrees cannot form the basis for a claim of ineffective assistance of counsel. Id. at 456. "Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation." Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980).
Petitioner still leaves this Court to speculate how the referenced documents would have been beneficial to his case, or that they would have altered the outcome. As such, this Court must presume that their exclusion was a reasonable strategic decision.
Under these circumstances, this claim of ineffective assistance is conclusory and without merit, and Petitioner fails to show that he is entitled to relief under 28 U.S.C. § 2254(d).
Based upon the foregoing, the undersigned concludes that Petitioner's claims are either procedurally defaulted, or were procedurally barred on independent and adequate state grounds, and thus must be dismissed, or they are without merit.
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, 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 also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9
