CAMILLE D. BIBLES, Magistrate Judge.
Petitioner Charity Hill, proceeding pro se and in forma pauperis, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 22, 2015. (ECF No. 1; ECF No. 5). The matter was stayed pending the outcome of Hill's state court proceedings. (ECF No. 11; ECF No. 17). The stay was lifted June 28, 2019, and Respondents answered the petition for habeas corpus relief on September 11, 2019. (ECF No. 31; ECF No. 35). Hill notified the Court on November 15, 2019, that she would not file a reply to the answer to her petition. (ECF No. 36).
The following factual background is taken from the presentence report, which relied in part on Phoenix Police Departmental Report #2005-51687620:
(ECF No. 35-1 at 200-01).
A grand jury indictment returned September 16, 2005, charged Hill and two co-defendants with first-degree murder or, alternatively, felony murder (kidnapping and burglary) (Count 1).
At a plea hearing conducted April 14, 2006, Hill avowed she had read, understood, and voluntarily signed the plea agreement, that she had discussed the entire plea agreement with her counsel, Mr. Craig, and that she was satisfied by counsel's answers to her questions regarding the plea agreement. (ECF No. 35-1 at 210-12). Hill was informed of the range of sentencing she faced pursuant to the entry of a guilty plea; she told the court she understood she could be sentenced to a maximum of 22 years' imprisonment and stated she understood the other "ramifications" of entering a guilty plea, including that she would be sentenced to a term of community supervision. (ECF No. 35-1 at 212-14). Hill was advised:
(ECF No. 35-1 at 214). Hill responded: "Yes." (Id.). The transcript of the plea hearing includes the following colloquy:
(ECF No. 35-1 at 215-16).
Hill was advised of the constitutional rights she was waiving by pleading guilty, and told the court she understood she was waiving these rights, including her right to have "a jury as opposed to a judge [] determine any aggravating factors that could increase [her] sentence beyond the presumptive of 16 years." (ECF No. 35-1 at 217-18). The judge emphasized Hill's waiver of this last right and, after Hill responded "Yes" to the judge's question as to whether she understood she was waiving her right to a jury determine any aggravating factors, the judge stated:
(ECF No. 35-1 at 218). Hill again stated: "Yes." (Id.). The judge then asked: "Again, anybody force you or threaten you in any way to get you to plead guilty?" and Hill replied: "No." (ECF No. 35-1 at 219).
Hill then pled guilty to the charge of second-degree murder. (Id.). Her counsel subsequently recited the factual basis for her guilty plea:
(ECF No. 35-1 at 219-20). The court asked Hill: "Did you, in fact, commit this crime?" and she responded: "Yes." (ECF No. 35-1 at 221). The state trial court then concluded Hill had "knowingly, intelligently and voluntarily entered a plea of guilty to the charge of Count I, as amended, second degree murder. . ." (ECF No. 35-1 at 222).
At some point after the entry of her guilty plea and before sentencing Hill moved to withdraw from the plea agreement, an evidentiary hearing was conducted, and the motion was denied. (ECF No. 35-1 at 235-36). On May 14, 2010, four years after entering her guilty plea and after a sentencing hearing, Hill was sentenced to an aggravated term of 19 years' imprisonment. (ECF No. 8-1 at 14-17). The delay between the time of the plea agreement and Hill's sentencing was due to her involvement in the prosecution of "other matters." (ECF No. 35-1 at 82 n.1).
At the sentencing hearing the State asked the court to impose a sentence of 20 years' imprisonment, noting the crime was "an extremely brutal murder of a 17-year-old," and that although Hill "didn't play the major role in what occurred. . . she did assist." (ECF No. 35-1 at 239). The prosecutor noted that in her first police interview, when describing the victim's struggle for his life, Hill said: "Hell yeah, I think he knew he was going to die once they were fighting with him. I think we all kinda knew that's what was going to happen." (ECF No. 35-1 at 240). He further noted Hill told the detective the victim "[p]ut up a fight for at least a good 15, 20 minutes," and that she knew "he was thinking about his mom, because he said he wanted his mom." (ECF No. 35-1 at 241). The prosecutor also opined: "I believe she has minimized her involvement in what took place," (ECF No. 35-1 at 240), and reiterated: "I don't believe she was the major participant in what went on. That certainly was Mr. Eason, but she did participate." (ECF No. 35-1 at 242).
At Hill's sentencing the court asked for information regarding the level of Hill's participation in the murder and whether her statements minimizing her role in the murder were truthful. The presentence report states: "According to [Hill], the codefendants' associates, [M.S.] and [J.V.], provided untruthful information to law enforcement officers, and she asserts that [M.S.] has threatened her about discussing the crime since her incarceration." (ECF No. 35-1 at 202).
(ECF No. 35-1 at 247-49).
Hill's counsel, Ms. Gray, then argued that Hill should receive a mitigated sentence asserting, inter alia, her youth, her difficult childhood, her lack of a criminal record, her family ties, her efforts at rehabilitation while in jail, her cooperation with the prosecution against her co-defendants and Ms. Orbison, her remorse, and her methamphetamine addiction. (ECF No. 35-1 at 250-56). With regard to Hill's honesty regarding her participation in the murder, Ms. Gray stated: "[The prosecutor] thinks that she's minimized her involvement; but, Judge, she's told it like it is exactly what happened, as brutal as it was." (ECF No. 35-1 at 252). Ms. Gray also stated: "Charity was high the entire time this happened," (ECF No. 35-1 at 255), which the prosecutor contradicted with Hill's statement to the detective that on the night in question "there was no drugs for us to get high on," although she and her co-defendants had been seeking drugs that night. (ECF No. 35-1 at 269-70). Several of Hill's family members and a mitigation specialist also spoke on her behalf at her sentencing hearing. (ECF No. 35-1 at 258-68).
(ECF No. 35-1 at 277). The court further stated:
(ECF No. 35-1 at 275-76). At the conclusion of the hearing the court sentenced Hill to a term of 19 years' imprisonment, more than the presumptive sentence but less than the maximum sentence allowed by the plea agreement. (ECF No. 35-1 at 278). The court further ordered, pursuant to state law, that Hill serve a term of community supervision upon her release from prison. (ECF No. 35-1 at 279).
Hill sought relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (ECF No. 8-1 at 19-21). She was appointed counsel, who notified the court that she was "unable to find a tenable issue" to raise on Hill's behalf. (ECF No. 8-1 at 23-24). Hill filed a pro se Rule 32 petition, asserting she was denied the effective assistance of trial and sentencing counsel; a Blakely claim; that her guilty plea was not voluntary because she was under duress; and that newly acquired evidence ameliorated her role in the offense of conviction. (ECF No. 8-1 at 27-38).
The state habeas trial court denied relief in an order entered October 11, 2012. (ECF No. 8-1 at 104-06). The court concluded Hill's ineffective assistance of counsel claims were without merit because she failed to demonstrate either deficient performance or prejudice. (ECF No. 8-1 at 105). The state court found the following facts:
(Id.). The court determined, with regard to Hill's other claims:
(ECF No. 8-1 at 105-06).
Hill sought review of the trial court's denial of Rule 32 relief. (ECF No. 8-1 at 108-10). She reasserted her Blakely and ineffective assistance of counsel claims, and noted one of her co-defendants had received a shorter sentence although he had a prior conviction and that she received an aggravated sentence notwithstanding her cooperation with the prosecutor. (ECF No. 8-1 at 110).
Id. at *1. The Arizona Supreme Court denied a petition for review, in which Hill asserted her ineffective assistance of counsel claims, her Blakely claim, her allegation that she was under duress at the time of her plea, and her allegation of newly discovered evidence. (ECF No. 8-2 at 13-45, 50, 52).
Hill filed a second Rule 32 petition on September 2, 2014, seeking the appointment of counsel and raising "new issues," including a claim of ineffective assistance of post-conviction counsel and denial of her right to allocute. (ECF No. 8-2 at 56-69). The state trial court dismissed the Rule 32 action as successive, also finding "[i]neffective assistance of post-conviction relief counsel is not a colorable claim. There is no Constitutional right to effective assistance of counsel in a state post-conviction relief proceeding." (ECF No. 8-2 at 72). Hill filed an appeal on October 23, 2014, presenting additional issues to the state appellate court. (ECF No. 8-2 at 74-100).
Hill filed the instant petition for federal habeas corpus relief on June 22, 2015. (ECF No. 1). The § 2254 action was stayed on October 16, 2015, pending the resolution of Hill's second Rule 32 action by the Arizona Court of Appeals. (ECF No. 11).
The Arizona Court of Appeals granted review but denied relief in Hill's second Rule 32 action on November 22, 2016, concluding:
State v. Hill, 2016 WL 6871422, at *1 (Ariz. Ct. App. Nov. 22, 2016). The Court of Appeals did note the trial court "was incorrect when it held there is no right to effective assistance of post-conviction relief counsel," stating this was a "cognizable claim for post-conviction relief when made against counsel who provided representation in an `of-right' post-conviction relief proceeding." Id. at n.1.
(ECF No. 35 at 9-10) (internal citations to the record omitted).
In her petition Hill asserts: (1) she was denied her right to the effective assistance of trial, sentencing, and post-conviction counsel; (2) she was sentenced to an aggravated term of imprisonment in violation of state law and Booth v. Maryland, 482 U.S. 496 (1987); (3) her guilty plea was not voluntary because she entered into the plea agreement as a result of duress stemming from post-traumatic stress disorder and threats on her life by her co-defendants while she was in the county jail; (4) after she was sentenced new evidence of her "minimal involvement" came to light; and (5) she was erroneously sentenced to community supervision, citing Arizona Revised Statutes §§ 13-701 and 13-710. (ECF No. 1 at 6-11, 15).
In her habeas petition Hill also argues she was denied her "fundamental right to allocution," in violation of the "Federal and State" constitutions and Rule 26.10(b)(1) of the Arizona Rules of Criminal Procedure. (ECF No. 1 at 12). Hill also alleges the sentencing court erred by aggravating her sentence "based on ex-parte evidence," citing Arizona Rule of Criminal Procedure 26.6. (ECF No. 1 at 13).
Hill does not ask the Court to vacate her conviction, but instead asks the Court "to remain in plea agreement" and have the aggravating "factors dismissed, and to be sentenced to 10 [calendar] years without [community] supervision, which is the minimum mitigated sentence" allowed "pursuant to ARS § 13-1104." (ECF No. 1 at 17).
Respondents allows Hill properly exhausted her first four claims for federal habeas relief; Hill's fourth claim is not cognizable in a federal habeas action; and that Hill procedurally defaulted her fifth claim in the state courts. (ECF No. 35 at 10-11).
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the Court may not grant a writ of habeas corpus to a prisoner on a claim adjudicated on the merits in a state court unless the state court's decision denying the claim was "`contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it contradicts the governing law established by United States Supreme Court, or if it reached a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). Furthermore, the state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. "`A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'" Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016), quoting Harrington, 562 U.S. at 101. See also Dixon v. Ryan, 932 F.3d 789, 801 (9th Cir. 2019).
Hill contends her plea was not knowing and voluntary because her counsel, Mr. Craig, promised her she would receive a sentence of ten years' imprisonment and because he did not adequately investigate her minimal role in the offense. Hill raised this claim in her first Rule 32 action; the state trial court concluded the claim was without merit and the appellate court affirmed the denial of relief. The state court's denial of relief on this claim was not clearly contrary to nor an unreasonable application of federal law.
A pleading defendant "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel" was constitutionally deficient. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); accord Fairbanks v. Ayers, 650 F.3d 1243, 1254-55 (9th Cir. 2011) (holding a pleading petitioner's Strickland claim "must be limited to the contention that trial counsel was ineffective only in advising petitioner to plead guilty"). Ineffective assistance of counsel claims in cases involving a pleading defendant are governed by the doctrine of Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim the petitioner must establish that their counsel's performance fell below an objective standard of reasonableness and "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 690. It is the petitioner's burden to demonstrate both prongs of the Strickland test. Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). In the context of a case involving a guilty plea, the petitioner satisfies the "deficient performance" prong of the relevant test by establishing that the advice she received from counsel as to the terms and potential benefits of the plea agreement was constitutionally deficient. Hill, 474 U.S. at 56-57. See also Premo v. Moore, 562 U.S. 115, 126-27 (2011); Fairbanks v. Ayers, 650 F.3d 1243, 1254-55 (9th Cir. 2011).
Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (some internal citations and quotations omitted). "The Third Circuit has interpreted this standard as requiring a defendant to demonstrate that the advice he received was so incorrect and so insufficient that it undermined his ability to make an intelligent decision about whether to accept the plea offer." Id., citing United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992).
Additionally, in the context of a pleading defendant, the prejudice prong of the Strickland test is modified; the habeas petitioner must establish "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. The Court must assess the circumstances surrounding the case to determine if the petitioner's allegation that she would have proceeded to trial is plausible. See, e.g., Smith v. Mahoney, 611 F.3d 978, 990 (9th Cir. 2010) (finding no Strickland prejudice where the petitioner had "little to no chance of prevailing on an affirmative defense"); Weaver v. Palmateer, 455 F.3d 958, 970 (9th Cir. 2006) (finding no Strickland prejudice where the petitioner's proposed defense "would have been unlikely to succeed").
The state habeas trial court found Mr. Craig's performance was not deficient. Hill asserted in her state habeas action, as she does in this matter, that Mr. Craig was ineffective because he assured her she "would only get 10 years" if she signed the plea agreement. (ECF No. 1 at 6). The state court found implausible Hill's claim that she was promised a ten-year sentence, particularly given her signature on the written plea agreement providing otherwise and her statements at the plea hearing. The Arizona Court of Appeals affirmed this determination and denied Hill's claims that her counsel coerced her to enter the plea agreement, noting the transcript of the plea colloquy belied this claim. Findings of historical fact underlying a state court's conclusion that a guilty plea was knowing and voluntary are given deference by a federal habeas court. Lambert v. Blodgett, 393 F.3d 942, 976-77 (9th Cir. 2004). A state court's adverse credibility finding is entitled to deference unless the petitioner presents clear and convincing evidence to the contrary. See Sexton v. Cozner, 679 F.3d 1150, 1156-57 (9th Cir. 2012). Hill fails to provide the Court with any evidence that Mr. Craig did indeed promise her a ten-year sentence if she pled guilty, and her allegation is belied by Hill's signature on the plea agreement and her statements at the plea hearing.
Hill further alleges Mr. Craig told her "it didn't matter" that she was "not the one who killed" the victim "or that [Hill] tried to stop the murder from happening." (ECF No. 1 at 6). Hill also contends Mr. Craig told her the plea "was the best [she] could get," and asserts Mr. Craig failed to adequately investigate the facts regarding her role in the murder. (Id.).
Hill has not established that Mr. Craig's advice with regard to the plea agreement was deficient. Because the plea agreement was advantageous to Hill and there was substantial evidence of her guilt on the charge of second-degree murder by means of accomplice liability, including her own statements to law enforcement and those of her co-defendants, her counsel's performance was not deficient nor coercive for advising her to accept the plea agreement. See, e.g., Weaver, 455 F.3d at 967. A lawyer's advice to plead guilty in the face of strong inculpatory evidence does not constitute ineffective assistance of counsel. See Lambert, 393 F.3d at 984 (finding no Strickland prejudice from counsel's alleged failure to uncover evidence supporting the proposed defense prior to the entry of a guilty plea where there was "overwhelming evidence of guilt" and "little chance" that defense would have succeeded at trial); Sophanthavong v. Palmateer, 378 F.3d 859, 870-71 (9th Cir. 2004) (finding no Strickland prejudice where the petitioner's assertion that he would have rejected the plea offer and gone to trial had he been properly advised was not credible in light of the substantial evidence of his guilt and much higher potential sentence at trial). Therefore, Hill has not satisfied the first prong of the Strickland or Hill test which requires she show her counsel's advice with regard to the plea agreement and the consequences she faced as a result of entering a guilty plea was incorrect.
Hill also contends Ms. Gray, her sentencing counsel, "missed 3 fundamental errors or more at sentencing. I am unfamiliar with legal language. . . she was not qualified or did not pass Bar when trying to make my arguments." (ECF No. 1 at 6, 10). Hill does not offer any specific argument Ms. Gray should have but failed to raise with regard to her sentencing, or how she was prejudiced by any alleged deficiency.
In her first Rule 32 action Hill asserted Ms. Gray provided unconstitutionally ineffective assistance of counsel. The state habeas trial court found counsel's performance was not "deficient or unreasonable under all the circumstances," and that there was no "reasonable probability that, but for her attorneys' alleged unprofessional errors, the result of the proceedings would have been different." (ECF No. 8-1 at 105). The state court further concluded: "Defendant fails to support her assertions that attorney [Ms.] Gray. . . was ineffective. Defendant's bare claims are insufficient." (ECF No. 8-1 at 105).
The state court's denial of relief on this claim was not clearly contrary to nor an unreasonable application of federal law. Judicial scrutiny of counsel's performance is highly deferential, and there is a "strong presumption that counsel's performance falls within the `wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986), quoting Strickland, 466 U.S. at 689. Cursory allegations that are purely speculative cannot support a claim of ineffective assistance of counsel. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (finding petitioner's "cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief."); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (finding "conclusory suggestions that [petitioner's] trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation"); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). See also Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (holding a defendant cannot satisfy the Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense."). Furthermore, a thorough review of the transcript of the sentencing hearing reveals Ms. Gray's performance at sentencing was well within the range of professionally reasonable performance with regard to the mitigation produced by Ms. Gray and her argument on Hill's behalf. Accordingly, the state court's denial of this claim was not clearly contrary to nor an unreasonable application of Strickland.
Hill asserts her post-conviction counsel was ineffective. Hill contends her first Rule 32 counsel, Ms. Eaton, "did nothing for 17 months" after being appointed, and her second Rule 32 incorrectly found no colorable claims for relief. (ECF No. 1 at 11). Hill states that counsel failed to raise "`any and all colorable claims,'" although "there were at least 3 fundamental errors." (ECF No. 1 at 11).
Hill raised her claim of ineffective assistance of post-conviction counsel in her third Rule 32 action, and the state trial court denied relief on the merits of the claim. Although Hill did not properly exhaust the claim by presenting it to the Arizona Court of Appeals in a procedurally correct manner, the claim may be denied on the merits. See 28 U.S.C. § 2254(b)(2). As the State reasoned in its responsive brief and the state habeas trial court found, none of Hill's assignments of error, i.e., the "3 fundamental errors" she asserts post-conviction counsel should have asserted, are meritorious. Counsel's performance is neither deficient nor prejudicial when counsel "fails" to raise a non-meritorious claim. See Juan H., 408 F.3d at 1273; Rupe, 93 F.3d at 1445; Lowry, 21 F.3d at 346.
With regard to the issue of allocution, as noted in the State's response in Hill's third Rule 32 action:
(ECF No. 35-1 at 91-92).
With regard to Hill's allegation regarding "ex parte" evidence, the State argued:
(ECF No. 35-1 at 94-96).
With regard to Hill's allegation that post-conviction counsel failed to assert she was improperly sentenced to a term of community supervision, the State argued:
(ECF No. 35-1 at 97-99).
In denying relief on these claims the state habeas court found Hill "failed to demonstrate" that her post-conviction counsel's performance was deficient and also failed to demonstrate any prejudice arising from counsel's alleged errors. (ECF No. 35-1 at 119). The court found Hill "chose to remain silent and rely upon her letters to the court and the rest of the voluminous sentencing materials submitted on her behalf." (Id.). The court further found the sentencing court (which was also the state habeas court) had considered all of the evidence submitted by the state, the victim's family, Hill herself, "etc." (Id.). The court specifically stated that the information it had heard from Mr. Eason "had been provided
As previously noted, counsel is not ineffective for failing to raise a non-meritorious claim, and Hill fails to establish that she was prejudiced by any of her post-conviction counsel's alleged errors, i.e., that she would have received a different sentence but for counsel's failure to raise these issues. Therefore, Hill is not entitled to relief on her allegation of the ineffective assistance of post-conviction counsel.
Hill contends she was sentenced to an aggravated term of imprisonment in violation of the terms of the plea agreement because the factors aggravating her sentence were found by a judge, i.e., a claim pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and because her sentence was aggravated based on the statements of the victim's family, citing state law and Booth v. Maryland, 482 U.S. 496 (1987).
The state habeas court's conclusion was not clearly contrary to nor an unreasonable application of federal law. The Supreme Court held in Blakely that a defendant may waive the right to have a jury, as opposed to a trial judge, determine the existence of aggravating factors. 542 U.S. at 310. Specifically, the Court stated that:
Id. (citations omitted). See also Castle v. Schriro, 414 F. App'x 924, 928 n.5 (9th Cir. 2011) (concluding the defendant's "express waiver of his `right to a determination by a jury of any fact used to impose a sentence within the sentencing range' are enforceable and effective. Blakely, 542 U.S. at 310."). See also Bird v. Brown, 338 F. App'x 573, 575 (9th Cir. 2009); White v. Ryan, 2010 WL 1416054, at *15 (D. Ariz. Mar. 16, 2010). Hill's statements to the trial court, that she understood the possible sentence she was facing and agreed to waive her right to have a jury determine aggravating circumstances, "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977) (holding defendants' statements at their plea hearings "carry a strong presumption of verity" and "constitute a formidable barrier" at later proceedings). Accordingly, the state court's denial of relief on Hill's claim that her sentence was improperly aggravated based on factors found by a judge rather than a jury was not clearly contrary to federal law. As explained more thoroughly supra, Hill's claim that her sentence violated state law is not cognizable.
In Ground Three of her federal habeas petition Hill asserts: "Petitioner was under duress." (ECF No. 1 at 8). Hill vaguely asserts she was under duress both at the time of the murder and at the time she entered her guilty plea:
(ECF No. 1 at 8). In support of these allegations Hill attaches to her petition a police department report reviewing Hill's "jail calls" on September 13, 2005:
(ECF No. 1 at 26). The report states, with regard to a phone call on September 18, 2005:
(ECF No. 1 at 26-27). The notation of a phone call on September 25, 2005, states: "Charity tells her mom she is now on psych medications that the jail is giving her and that she is hearing voices and only since she has been in jail." (ECF No. 1 at 27).
Hill raised the basic premise of her duress claim in her state Rule 32 action, and the trial court found:
(ECF No. 8-1 at 105).
"A habeas petitioner bears the burden of establishing that [their] guilty plea was not voluntary and knowing." Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006), citing Parke v. Raley, 506 U.S. 20, 31-34 (1992). The test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). A plea is "involuntary" if it is the result of threats, improper promises, or other forms of wrongful coercion. Brady v. United States, 397 U.S. 742, 750 (1970) ("[A] plea of guilty. . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).").
Nothing in the record reflects that Hill's guilty plea was the product of threats, bribes, duress, or coercion. At the time she entered her plea, Hill told the court she was not pleading guilty as the result of any threats or coercion, and that she was voluntarily pleading guilty. These statements, contemporaneous with her entry of a guilty plea pursuant to a signed plea agreement in which she also professed she was voluntarily pleading guilty (ECF No. 8-1 at 9), are a "formidable barrier" to this Court now determining her guilty plea was made under duress. Blackledge, 431 U.S. at 74; Muth v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012) ("Petitioner's statements at the plea colloquy carry a strong presumption of truth."). See also United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991) (reaching this holding in a section 2255 case). "The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge, 431 U.S. at 74. Accordingly, because Hill fails to provide any evidence contradicting her statements at her plea hearing that her guilty plea was voluntary and not coerced, the state court's denial of this claim for relief was not clearly contrary to nor an unreasonable application of federal law.
Hill asserts she is entitled to federal habeas relief because, after she was sentenced, new evidence came to light. She contends that after she entered her guilty plea Mr. Eason "admitted to his role in the crime." (ECF No. 1 at 9). Hill asserts she did not "know [of this evidence] until after the fact, and [therefore] it is new evidence to the petitioner since I had no knowledge of it and no access to it. [sic]" (Id.). Hill contends that if the evidence were known to her prior to the entry of her guilty plea, she would have refused the plea agreement. (Id.).
Hill raised this claim in her first Rule 32 action. The state habeas trial court found and concluded:
(ECF No. 8-1 at 105-06).
"[T]he existence merely of newly discovered evidence relevant to the innocence of a state prisoner is not a ground for federal habeas corpus relief." Herrera v. Collins, 506 U.S. 390, 400 (1993). Post-conviction evidence serving only to "undercut the evidence presented at trial" does not warrant federal habeas relief. Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997). See also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (finding habeas relief unavailable where "the totality of the new evidence does not undermine the structure of the prosecution's case"); Swan v. Peterson, 6 F.3d 1373, 1384-85 (concluding newly-discovered evidence warrants habeas relief only when it bears on the constitutionality of the conviction and probably would produce an acquittal).
The state trial court found, as a matter of fact, that Hill's purportedly "newly discovered" evidence was known to her at the time of trial. This finding of fact was not clearly erroneous. Furthermore, Hill's allegation of "new evidence" is not asserted to support a claim of actual innocence; Hill does not seek to vacate her conviction, but instead asks the Court to order that she be resentenced. Hill does not deny that she acted as an accomplice, but asserts her minimal role in the victim's death warranted a lesser sentence.
To the extent Hill asserts she has raised a claim of "innocence" with regard to the degree of her involvement in the crime found by the state sentencing court, she does not present "new evidence" as that term is defined by the United States Supreme Court. In denying a similar claim in a similar context, Judge Rosenblatt adopted the following findings and conclusions of Magistrate Judge Burns:
Diaz v. Ryan, 2012 WL 7767577, at *9 (D. Ariz. Aug. 27, 2012) (some internal citations omitted), report and recommendation adopted, 2013 WL 1149590 (D. Ariz. Mar. 19, 2013).
The state court did not err in determining that the evidence Hill asserts is "newly discovered" did not warrant granting her relief regarding her sentence, inter alia because the evidence was known to Hill at the time of her guilty plea and sentencing. The state court's denial of relief on this claim was not clearly contrary to or an unreasonable application of federal law.
Hill argues she was erroneously sentenced to serve a term of community supervision after her release from prison. (ECF No. 1 at 6-11, 15). She contends the "[t]rial court imposed a term of supervised release for [second-degree] murder in violation of ARS § 13-710." (ECF No. 1 at 15). Hill maintains: "The date of offense was September 4, 2005, the date of change of plea proceedings was April 14, 2006. During this time there was no statute to support supervision beyond [a] prison term," citing Arizona Revised Statutes §§ 13-701 and 13-710. (Id.). She contends she raised this issue in her third petition for state post-conviction relief. (Id.). Respondents assert this claim was not properly exhausted in the state courts. Regardless of Hill's failure to properly exhaust this claim, the claim may be denied on the merits.
Hill's claim regarding her sentence fails because a federal habeas court is "bound by a state court's construction of its own penal statutes." Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). See also Missouri v. Hunter, 459 U.S. 359, 366 (1983). As noted supra, the state trial court found Arizona law required Hill be sentenced to a term of community supervision to commence upon her release from prison. Additionally, "[a]bsent a showing of fundamental unfairness, [even] a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). See also Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Cacoperdo v. Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994) (holding the petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (concluding the defendant's claim that the state court was required to merge their convictions was not cognizable); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the petitioner's claim that the trial court violated a provision of state law in sentencing him was not cognizable). Because this claim is not cognizable, Hill is not entitled to federal habeas relief on this claim.
The state court's conclusions that Hill was not denied her right to the effective assistance of counsel; that her guilty plea was not coerced or made under duress; that she waived her Blakely claim by pleading guilty according to the terms of the written plea agreement; and that she was not entitled to relief on her claim of "newly discovered evidence," were not clearly contrary to or an unreasonable application of federal law. Hill's claim that her sentence violated state law is not cognizable in a federal habeas action.
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.
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. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The undersigned recommends that, should the Report and Recommendation be adopted and, should Hill seek a certificate of appealability, a certificate of appealability should be denied because she has not made a substantial showing of the denial of a constitutional right.
At Hill's sentencing the prosecutor told the court:
(ECF No. 35-1 at 244). Hill's sentencing counsel, Ms. Gray, argued that the prosecutor was not representing these facts entirely accurately. (ECF No. 35-1 at 252-54). Hill's co-defendant, Mr. Eason, pled guilty on October 23, 2009, and co-defendant Mr. Armenta pled guilty on March 16, 2010. (ECF No. 8-2 at 107).
(Id.)
Rule 26.10(b)(1) of the Arizona Rules of Criminal Procedure provides the sentencing court must "give the defendant an opportunity to address the court" prior to imposing sentence. The record indicates Hill was given an opportunity to address the court. Moreover, a state court's alleged failure to comply with its own procedural rules does not violate the defendant's right to due process of law. See Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (holding "alleged errors in the application of state law are not cognizable in federal habeas corpus" proceedings).
Similarly, a defendant's right to due process is violated only if the sentencing court actually relied on any ex parte evidence in formulating the defendant's sentence. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998). The state habeas court that considered this allegation, in the context of Hill's claim of ineffective assistance of post-conviction counsel, determined the sentencing court did not rely on any ex parte evidence when sentencing Hill. (ECF No. 35-1 at 119). And, although the Arizona state courts do not "condone or encourage any ex parte discussion of sentencing by a trial judge prior to the imposition of sentence," this case is distinguishable from the cases wherein the state courts have disapproved of this behavior. See State v. Mincey, 141 Ariz. 425, 444 (Ariz. 1984) (finding informal conversation between judge and media and receipt of ex parte communications concerning sentencing did not require disqualification), distinguishing State v. Valencia, 124 Ariz. 139 (1979). See also State v. Callahan, 119 Ariz. 217, 221-22 (Ariz. Ct. App. 1978) (finding the trial judge made full disclosure of witness' letters received prior to sentencing and, because no prejudice was shown, disqualification was not necessary).
Lambert, 393 F.3d at 982-83 (internal string citations omitted). Hill does not assert that, but for any error by Mr. Craig, she would not have pled guilty but instead would have insisted on going to trial, and the record indicates that, given her minimal but admitted role in the murder, the "best" plea deal Hill could receive was as an accomplice to second-degree murder.
