Justice v. Shinn ( 2020 )

Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 1 of 78 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Craig Dwayne Justice, No. CV-18-03144-PHX-RCC (EJM) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Petitioner Craig Dwayne Justice filed an amended pro se Petition for Writ of Habeas 16 Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on February 19, 2019. (Doc. 7).1 17 Petitioner raises six grounds for relief: (1) actual innocence in violation of the Fifth, Sixth, 18 and Fourteenth Amendments; (2) ineffective assistance of trial counsel in violation of the 19 Fifth, Sixth, and Fourteenth Amendments; (3) prosecutorial misconduct in violation of the 20 Fifth, Sixth, and Fourteenth Amendments, the Arizona Constitution, and rules of 21 professional conduct and ethical responsibilities; (4) denial of Petitioner’s right to confront 22 witnesses in violation of the Fifth, Sixth, and Fourteenth Amendments; (5) violation of 23 Petitioner’s due process rights and rights under the Fifth, Sixth, and Fourteenth 24 Amendments; and (6) ineffective assistance of appellate counsel in violation of the Fifth, 25 Sixth, and Fourteenth Amendments, and the Arizona Constitution.2 26 Respondents filed an Answer contending that some of Petitioner’s claims are not 27 1 The original PWHC was filed on October 3, 2018. (Doc. 1). 28 2 Petitioner also presents multiple sub-claims, which will be addressed in more detail below. Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 2 of 78 1 cognizable on habeas review, that some claims are unexhausted and/or procedurally 2 defaulted without excuse, and that the remaining claims lack merit. (Doc. 14). Respondents 3 request that the Court deny and dismiss the PWHC with prejudice. 4 Petitioner filed a Reply rearguing the issues in his PWHC and alleging that he has 5 shown cause and prejudice to excuse the procedural default of his claims. (Doc. 17). 6 Petitioner requests copies of the grand jury transcripts and documents relating to probable 7 cause and the supervening indictment, discovery under Rule 6, and an evidentiary hearing 8 pursuant to Rule 8. Id. at 3–4; see Rules Governing § 2254 Cases. Petitioner requests that 9 the Court conduct a de novo review of his case and asserts that all issues raised in the lower 10 courts should be viewed as not defaulted or unexhausted. Id. at 59. 11 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter 12 was referred to Magistrate Judge Markovich for a Report and Recommendation. The 13 undersigned finds that several of Petitioner’s claims fail to state a cognizable claim for 14 habeas relief. The undersigned further finds that several of Petitioner’s claims are 15 procedurally defaulted and barred from this Court’s review, and that Petitioner does not 16 demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the 17 procedural default of his claims. Finally, as to Petitioner’s claims that are cognizable, 18 properly exhausted, and not defaulted, the undersigned finds that Petitioner has failed to 19 show that the state court’s determination of the claims was contrary to or based on an 20 unreasonable application of clearly established federal law, or based on an unreasonable 21 interpretation of the facts. Accordingly, the Magistrate Judge recommends that the District 22 Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. 23 I. FACTUAL AND PROCEDURAL BACKGROUND 24 A. Trial, Sentencing, and Appeal 25 On April 13, 2012 Petitioner was indicted by a Maricopa County grand jury on one 26 count of second-degree murder, a class one dangerous felony, and one count of leaving the 27 scene of a fatal injury accident, a class two felony. (Ex. A).3 The trial court subsequently 28 3 All exhibit numbers refer to the exhibits attached to Respondents’ Answer unless otherwise noted. All page numbers refer to the page of the document as filed in CM/ECF. -2- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 3 of 78 1 granted Petitioner’s motion to remand for a new finding of probable cause (Ex. C), and a 2 remand indictment issued on August 20, 2012 (Ex. D). 3 On August 29, 2013 the jury found Petitioner guilty of second-degree murder and 4 leaving the scene of a fatal injury accident. (Ex. W at 1293–94). On December 6, 2013 5 Petitioner was sentenced to a presumptive term of 16 years for the second-degree murder 6 conviction and a consecutive, presumptive term of 9.25 years for leaving the scene of the 7 accident. (Exs. Y and Z). 8 The Arizona Court of Appeals summarized the background of Petitioner’s case as 9 follows:4 10 On the morning of the collision, Defendant and his wife were driving home from a party at a friend’s house at which 11 Defendant had been drinking.5 On the drive home, Defendant was involved in a traffic altercation with two men in a pickup 12 truck.6 Darrin, the driver of the truck, admitted that he had also 13 4 While the appellate court’s stated facts are entitled to the presumption of correctness, see 28 U.S.C. § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), the 14 undersigned finds that the COA’s description is inadequate to fully explain the State’s and Petitioner’s theories at trial and the evidence in support of those theories. Thus, the 15 undersigned has added additional notes to further elucidate the factual background. 5 Petitioner’s wife, Shirley Chavez, testified that she was driving because Petitioner had 16 been drinking and didn’t have a license. (Ex. R at 904:10–15). On the way home she saw a body laying across the road on Pueblo near 97th Street. Id. at 906:12–14. There was a 17 dark-colored truck parked on the curb with the driver’s side door open and a man in the driver’s seat. Id. at 907:5–7. Petitioner rolled down the window and said, “Are you 18 alright?”, then got out of the car to help. Id. at 907:25–908:4. The man on the ground got up and started swinging at Petitioner, and the man in the truck got out and tried to get in 19 Shirley’s car. Id. at 908:5–9. Petitioner told Shirley to “get the hell out of there” and she drove towards 96th Street and passed a red car. Id. at 908:13–19. Shirley made a U-turn 20 and tried to go around the red car twice but it stopped her; once the red car turned, Shirley turned and went back to the fight scene. Id. at 909:1–11. Petitioner, the other men, and the 21 truck were all gone. Id. at 909:12–17. Shirley then drove down Pueblo towards Ellsworth with her windows down, calling out for Petitioner, and a tire rolled past her. Id. at 910. 22 When she got to Ellsworth, she saw the same pickup truck from the fight scene; she stopped and called for Petitioner and heard him say “they run me over.” Id. at 911:15–19. Shirley 23 found Petitioner on the ground in front of the truck’s driver’s side fender; his leg was bent up beside him with his foot under his neck and he had blood on his face and leg. Id. at 912. 24 She did not hear a crash and did not see any other vehicles in the area; she got tunnel vision and just saw Petitioner was hurt and wanted to get him to the hospital. Id. at 912, 936–37. 25 Shirley told Petitioner to get up and he said, “I have no leg.” Id. at 913:21–23. Shirley hopped him up on his other leg and got him to her car. Id. at 913:24–914:2. The only other 26 person she saw at the scene was a woman in a long white gown who “looked like an angel.” Id. at 914:8–10. The woman did not say anything to her, but Shirley heard the woman 27 giving her license plate number, and Shirley said, “Good. Please tell them we’re going to the hospital.” Id. at 914:10–14. Shirley denied that she drove towards home; she went to 28 the hospital. Id. at 915:10–18. 6 The two men were identified as Darrin Medina and Kendrick John, also known as “KJ.” -3- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 4 of 78 1 been drinking. According to Darrin, he and Defendant got out of their vehicles and argued in the street, then Defendant hit 2 him in the mouth and fractured his jaw before driving off in Darrin’s truck,7 leaving Darrin and his friend at the scene.8 3 Defendant was driving the truck when, minutes later, he ran a stop sign approximately half a mile away and hit an SUV, 4 killing the driver.9 5 (Ex. M at 385; 398). 6 7 Deputy Whelan spoke with Petitioner at the hospital and testified that Petitioner explained the fight as follows: Petitioner and his wife were driving and found two men laying in the 7 street and stopped to help. A racial misunderstanding occurred, the men began to hit him, and Petitioner hit back. Then Petitioner got into their truck because he noticed his wife had 8 left him, and then he was pulled from the truck. Petitioner denied ever driving the truck. (Ex. S at 1101–02, 1103–04). Petitioner “explained that he had attempted to get into the 9 black truck and drive away and he had been pulled from the truck and he was unsure whether the truck was moving or not and if that truck had actually run him over.” (Ex. N 10 at 439:10–14). Deputy Whelan stated that Petitioner was being triaged and moved to another hospital and could not provide further details; Petitioner was “banged up” and 11 “wasn’t sure of much.” Id. at 439:16–24. 8 Medina testified that he was driving home from the bar with KJ. (Ex. N at 446). As they 12 were headed west on Pueblo, another car cut him off and stopped in front of him. Id. at 447. A male got out from the driver’s side, Medina said “a bucket of words,” the other man 13 hit Medina, and Medina lost consciousness. Id. at 447–48. Medina woke up and saw KJ getting out of the truck and the other man jumped in his truck and took off. Id. at 449; 464. 14 Medina doesn’t know what happened to the other car but remembered the other man getting in his truck and taking off straight forward. Id. That was the last time he saw his truck. Id. 15 at 455. Medina blacked out again and woke up when KJ and a police offer were trying to get him out of the street. Id. at 450. Medina told the police that somebody punched him 16 and took his truck. Id. at 451. He had no memory of anything that happened after he saw the person drive off in his truck until the cops were getting him off the street. Id. at 467. 17 Medina did not get a good look at the other car and did not remember anything about the car or the person who got out of it. Id. at 447–49; 464. 18 Deputy Antwiler testified that when he arrived at 96th and Pueblo, he found a white female with blond hair and two Native American men in the road. (Ex. M at 381). One man 19 was trying to pull the other man off the ground. Id. The woman said she found the men like that and didn’t know anything about what happened and was just trying to render 20 assistance. Id. at 384. Before Deputy Antwiler got to Pueblo, he passed a white car that was stopped on the side of the road on 96th Street. Id. at 382–83. He only briefly paid 21 attention to the car because he was focusing on the male subjects that were injured and intoxicated. Id. at 384. 22 Deputy Whelan testified that when he arrived at 96th and Pueblo, he found two males in the road with Deputy Antweiler and Deputy Maclyn. (Ex. N at 425). The police 23 dispatcher advised that there was an open phone line thought to be related to the call about the fight scene. Id. Deputy Whelan asked the men for their phones; one man gave him his 24 phone and Deputy Whelan determined it was not the open line. Deputy Whelan got more information from the dispatcher that the phone was pinging near Chrisman and Baseline 25 and traveled that direction. Id. at 426. He expected to find a white vehicle but instead saw a small red passenger car; it was the only car on the road. Deputy Whelan stopped the car, 26 briefly looked at it and did not see any damage to it, and spoke to the occupants, who did not look like they had been in a fight. They said that they had come across the fight scene 27 and called it in; the female occupant, Cheryl Laughlin, reached in her purse and realized her phone was still on. Id. at 426–28. 28 9 The defense theory at trial was that the evidence showed Medina, not Petitioner, was more likely than not the driver at the time of the fatal injury accident. (Ex. M at 319; Ex. P at -4- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 5 of 78 1 A witness who lived near the intersection heard the crash and immediately called 911.10 She saw “two people in front of the 2 truck11 leaving.” The witness asked the man and woman, if anyone was hurt, but they did not respond. The witness also 3 saw a white car “on the other side,” facing in the opposite direction of the pickup truck, and saw a “blonde woman” 4 getting the man into the back passenger door of the car before the woman “went round to the driver’s side” and “accelerated” 5 away. The man appeared to have some difficulty in getting into the car, and the witness heard the woman telling the man to get 6 in. The car drove off while the passenger door was still open. As the car went down the street, the witness saw the woman 7 turn her right blinker on “like she was going to take a right turn,” but then the woman turned her lights off and turned left. 8 The woman also did not stop at a stop sign, just went through it. The car was headed in the direction of the trailer complex in 9 which Defendant lived at the time. All this time, the witness was on the telephone with 911, describing events and relaying 10 the license plate number of the white car. 11 Based on the 911 call, police broadcasted a description of a white Lincoln that had been seen leaving the scene as well as a 12 description of its occupants. Shortly thereafter, police received a report that a “hit-and-run” victim had arrived at a nearby 13 hospital. A Maricopa County Sheriff’s deputy drove to the hospital and located the white Lincoln parked in the parking 14 lot. He also found Defendant, who was being treated for several injuries including a “large 5 centimeter long, mildly displaced 15 and comminuted right mid-femoral shaft fracture” and a “curvilinear laceration on the right forehead.”12 Defendant 16 710). 17 10 The witness who lived near the intersection of South Ellsworth and Pueblo, where the accident occurred, was Karin Copeland. She testified that she called 911 to report the car 18 accident. (Ex. M at 324–25). The truck was in her front yard and she saw two people right in front of the truck leaving. Id. at 328–29. Right on the other side, she saw a white car 19 with the back-passenger door open. Id. at 329. Karin asked the people if they were ok, but the woman did not respond. Id. at 329; 337. Karin saw the woman get the man to the back- 20 passenger door and then the woman went to the driver’s side and was yelling “get in.” Id. at 330. Karin was reading the license plate to the 911 operator when the car drove away 21 with the back door still open. Id. The driver turned on the right blinker, then turned off the lights and turned left. Id. at 331. Karin didn’t get a good look at the people, but the woman 22 was blond and shorter than the man. Id. at 336. The man seemed to be in great pain and like he was confused about how to get into the car. Id. at 336–38. 23 11 Deputy Miner testified that he and Sergeant Judd were the first officers to arrive at the accident scene. (Ex. M at 347). He observed a white SUV in Karin Copeland’s driveway 24 and a dark-colored truck in the yard and partially on Pueblo. Id. at 347–48. 12 The parties stipulated to Petitioner’s and Medina’s injuries: Medina had fractures 25 through the right and left mandibular, a sinus fracture, two lacerations on his lips, and swollen lips. (Ex. K). Petitioner had a fractured femur, a large abrasion and large laceration 26 on his forehead, a small laceration on his eyebrow, and a concussion. (Ex. L). DNA testing showed Petitioner’s blood was found on the truck’s driver’s side door, 27 driver’s side headrest, center console, and deployed driver’s side airbag. (Ex. O at 576:25– 577:1, 581:13–20). Detective LaBenz testified that the bloodstain on the airbag could have 28 only been deposited after the collision when the airbag deployed. (Ex. P at 692:20–22). It was not the normal pattern you would expect to see with an airbag deployment; it was one -5- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 6 of 78 1 gave the deputy several versions of events. He first stated that he had stopped to render assistance to the two men in the truck 2 but that a “racial misunderstanding” occurred and that they proceeded to hit him and he fought back. He also told the 3 deputy that he had hit both of them and gotten into their truck because his wife had left him and driven off in their white car. 4 He then stated that someone pulled him out of the pickup truck and ran him over with it.13 However, when the deputy 5 explained that the truck was found half a mile from the location of the initial altercation, Defendant denied driving the truck. 6 Defendant’s Blood Alcohol Content was between .146 and .174 percent within two hours of driving. 7 Defendant did not testify at trial, but his wife testified and 8 maintained that they had been the subject of an attempted car- jacking by the men in the pickup truck and that Defendant 9 sustained his injuries when he was run over by them. She maintained that she never saw the SUV and was unaware of 10 any collision. She testified that the only reason they left the location where the woman was on the telephone was to take 11 Defendant to the hospital because he needed immediate medical attention. 12 13 (Ex. DD at 1489–1510). 14 Following his conviction, Petitioner sought review in the Arizona COA. (Ex. AA). 15 Appointed counsel filed a brief arguing that Petitioner’s rights to a fair trial and due process 16 under the Arizona Constitution and the Fifth, Sixth, and Fourteenth Amendments to the 17 United States Constitution were violated because: (1) it was reversible, fundamental error 18 to admit Petitioner’s felony conviction, parole status, and violation of parole without any 19 limiting instruction; and (2) failure to give a limiting instruction was fundamental error. 20 droplet of blood instead of an impact-type pattern. Id. at 725:11–16; see also Ex. R at 999. Detective LaBenz and Detective Wright testified that there was no evidence of blood in the 21 backseat. (Ex. O at 695:5–16, 725:20–22, 829:2–11). A bloodstain on the passenger door was not tested. Id. at 725:17–19. 22 Detective Wright testified that, from his review of the evidence and medical records, Petitioner, but not Medina, had injuries consistent with the damage to the truck and 23 consistent with Petitioner being in the driver’s seat. (Ex. P at 819–32). Petitioner’s expert, Harry Ryon, testified that Medina, not Petitioner, had airbag-type injuries. (Ex. R at 990– 24 91, 1014–15; Ex. S at 1080, 1083). Ryon “was very convinced beyond a reasonable scientific certainty that [Petitioner] was not driving the vehicle at the time of the impact[,]” 25 and that it was “more likely that Mr. Medina was because of the severity of his facial injuries.” (Ex. R at 1016:16–21). There was “also a possibility that somebody else could 26 have been driving that truck . . . because not all of the evidence was collected.” Id. at 1016:21–1017:3. 27 13 On cross-examination, Harry Ryon testified that Petitioner’s contention that he was a pedestrian was not a plausible explanation for this incident—Petitioner could have been a 28 pedestrian that was hit, then put into the truck, then taken back out, but it was not plausible. (Ex. S at 1070:14–24). -6- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 7 of 78 1 (Ex. BB). 2 On July 23, 2015 the COA issued its decision affirming Petitioner’s convictions and 3 sentences. (Ex. DD). The court first explained the course of events that led to Petitioner’s 4 parole status being introduced at trial and noted that when the trial court ruled the evidence 5 admissible, the court advised Petitioner’s counsel that he could ask for a limiting 6 instruction, but counsel did not request one. Id. at 1489–92. The COA found that the trial 7 court did not abuse its discretion in admitting the evidence because “[t]he evidence was 8 clearly relevant to explain Defendant’s reason for leaving the scene and introduced for the 9 proper purpose of proving Defendant’s motive for doing so.” Id. at 1494. The court further 10 found that the evidence became even more relevant when Petitioner’s wife denied that any 11 collision occurred and testified that they left the scene to obtain medical assistance. Id. The 12 COA rejected Petitioner’s argument that the State used the evidence as improper character 13 evidence to show that he was the type of person who would cause a fatal accident and flee 14 the scene because he was a felon on parole because it was “not borne out by the record[.]” 15 Id. at n.3. The court further rejected Petitioner’s argument that the evidence was 16 “superfluous” because Petitioner already had enough motive to flee because he was 17 drinking and driving because “the fact that the State may have evidence of other motives 18 does not preclude it from presenting evidence of any one motive even though less 19 prejudicial evidence of motive may exist.” Id. The court also rejected Petitioner’s argument 20 that the evidence was unfairly prejudicial, reasoning that “[w]hile the evidence of 21 Defendant’s parole status may have been ‘adversely’ probative, in the sense that all 22 relevant evidence generally is, it was not unfairly prejudicial in that it did not suggest a 23 decision on an improper basis such as ‘emotion, sympathy, or horror.’” Id. at 1495 (citation 24 omitted). In addition, the probative value of the evidence as an alternate reason for leaving 25 the scene outweighed potential prejudice, and the trial court instructed the jury that the 26 nature of Petitioner’s underlying felony was irrelevant to the case and not something they 27 should consider. Finally, the court rejected Petitioner’s argument that the trial court had an 28 “imperative duty” to sua sponte give a limiting instruction and that the failure to do so was -7- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 8 of 78 1 reversible, fundamental error. The court noted that the Arizona Supreme Court has 2 “repeatedly held that, if a defendant wants an instruction limiting the effect of certain 3 evidence he must request it, and the failure of the trial court to so instruct is not error in the 4 absence of a request therefor.” Id. at 1496 (citation omitted).14 Because the trial court was 5 not required to give a limiting instruction in the absence of a request, Petitioner failed to 6 prove that any error occurred. Id. The court therefore affirmed Petitioner’s convictions and 7 sentences. Id. at 1497. 8 On August 26, 2015 Petitioner filed a petition for review in the Arizona Supreme 9 Court. (Exs. FF and WWW). Petitioner argued that the admission of his parole status when 10 he did not testify deprived him of a fair trial and due process, citing the Fifth, Sixth, and 11 Fourteenth Amendments and the Arizona Constitution. (Ex. FF at 12). Petitioner contended 12 that this was a reversible abuse of discretion and that the failure to give a limiting 13 instruction was fundamental error. Id. at 3. On January 5, 2016 the Arizona Supreme Court 14 denied the petition for review. (Ex. HH). On February 4, 2016 the COA issued its mandate. 15 (Ex. EE). 16 B. Rule 32 Petition for Post-Conviction Relief 17 On October 6, 2015 Petitioner initiated proceedings in Maricopa County Superior 18 Court for Rule 32 post-conviction relief (“PCR”).15 (Ex. II). In his notice, Petitioner 19 indicated that he was making a claim of ineffective assistance of counsel (“IAC”) and that 20 there were facts that established by clear and convincing evidence that he was actually 21 innocent. Id. Petitioner specifically alleged that Kendrick John’s interview placed Medina 22 as the driver of the truck that caused the fatal accident and that John was not subpoenaed 23 14 The court also noted that experienced defense counsel may consider it good trial strategy 24 to not ask for a limiting instruction. 15 The Arizona Rules of Criminal Procedure were amended effective January 20, 2020. 25 New Rule 32 applies to defendants convicted after a trial or a contested probation violation hearing, and new Rule 33 applies to pleading defendants and defendants who admitted a 26 probation violation or had an automatic probation violation. Because Petitioner’s state court actions were filed prior to January 20, 2020 and he had no state court action pending 27 at the time the new rules went into effect, former Rule 32 applies to Petitioner’s case and the Court will cite to former Rule 32 throughout this opinion. See Arizona Supreme Court 28 Order R-19-0012, available at: https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure -8- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 9 of 78 1 for trial and his interview was not disclosed. Id. On November 2, 2015 Petitioner filed an 2 amended PCR notice and requested counsel. (Ex. JJ). Petitioner alleged that there were 3 facts establishing his innocence by clear and convincing evidence—specifically, 4 exculpatory evidence and witnesses who were subpoenaed but allowed to not show up for 5 trial, and that if this evidence had been produced, it would have created reasonable doubt 6 in the jurors’ minds. Petitioner further alleged claims of IAC, due process and compulsory 7 process violations, and prosecutorial misconduct. Id. The trial court appointed counsel (Ex. 8 LL), and counsel subsequently filed a notice of completion stating that he was unable to 9 find a tenable issue for relief and requesting that Petitioner be given additional time to file 10 a pro se petition. (Ex. MM). 11 Petitioner filed a pro se petition on the court provided form and a second, 12 handwritten petition.16 In his first petition, Petitioner alleged that he was eligible for relief 13 for the following reasons: (1) denial of the constitutional right to representation by a 14 competent lawyer at every critical stage of the proceeding; (2) unconstitutional suppression 15 of evidence by the State; (3) unconstitutional use by the State of perjured testimony; (4) 16 sentence imposed other than in accordance with the procedures established by rule and 17 statute; (5) violation of the Sixth Amendment right to compulsory process for witnesses 18 not at trial; (6) unconstitutional pre-accusation delay; (7) unconstitutional selective 19 prosecution; (8) unconstitutional loss of presumption of innocence; and (9) prosecutorial 20 misconduct violating due process and the right to a fair trial because the State lied to the 21 jury, misrepresented evidence, and failed to complete discovery or produce evidence. (Ex. 22 OO). For the facts in support of his claims, Petitioner wrote that the State caused multiple 23 due process violations, trial and appellate counsel were ineffective, and multiplicity in 24 sentencing. Petitioner further stated that the issues raised in his petition had not been finally 25 decided or raised before because trial counsel was ineffective for failing to properly raise 26 or frame issues in evidentiary proceedings, and appellate counsel failed to raise and 27 16 The first petition was signed by Petitioner on January 4, 2016 and filed by the clerk on May 13, 2016. (Ex. OO). The second petition was signed by Petitioner on May 2, 2016 and 28 filed by the clerk on May 13, 2016. (Ex. QQ). The trial court deemed the two submissions to be a single petition for PCR. (Ex. RR). -9- Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 10 of 78 1 preserve claims. 2 In his second petition, Petitioner alleged the following claims: (1) the State violated 3 due process and the Fifth, Sixth, and Fourteenth Amendments in a 110-day pre-accusation 4 delay that permitted the State to not completely investigate all available evidence 5 including: (a) blood on the steering wheel, (b) Medina’s blood or clothing, (c) a handprint 6 on the car window, and (d) allowing Medina to access his truck and retrieve property, 7 disturbing the evidence, before defense counsel could investigate it; (2) the State 8 selectively prosecuted Petitioner and gave Medina preferential treatment, denying 9 Petitioner equal protection in violation of the Fifth, Sixth, and Fourteenth Amendments, 10 by: (a) not charging Medina with drunk driving, (b) not testing Medina’s blood for DNA, 11 (c) not testing Medina’s clothing for airbag residue or his clothing or hands for Petitioner’s 12 blood, (d) withholding pictures of Medina’s injuries from the jury, (e) allowing Medina to 13 disturb and tamper with evidence in the truck prior to any defense examination, and (f) 14 allowing Medina to testify against Petitioner; (3) Petitioner was denied the presumption of 15 innocence in violation of due process and the Fifth, Sixth, and Fourteenth Amendments 16 because the jury received photos of Petitioner handcuffed to the hospital bed and wearing 17 a neck brace but he did not have any neck injuries; (4) prosecutorial misconduct in violation 18 of the Fifth, Sixth, and Fourteenth Amendments because: (a) the State admitted it made 19 mistakes in collecting evidence or completing discovery, (b) the State failed to complete 20 discovery and make disclosures, (c) the State withheld photos of Medina’s injuries and 21 allowed perjured testimony, (d) the State failed to disclose Laughlin’s 911 tape or a 22 transcript, (e) the State allowed witnesses to be absent from trial without requesting 23 telephonic appearance or following up on a witness’s hospitalization, (f) the prosecutor 24 vouched when he excused the officer’s mistakes, said the defense presented a smoke and 25 mirrors case, repeatedly referenced Petitioner’s parole status to explain why he left the 26 scene of the accident, and presented an unproven and untestified to assumption as to his 27 personal opinion about the events leading up to the accident; (5) the State’s agents allowed 28 the mishandling of evidence, depriving Petitioner of a fair trial under the Fifth, Sixth, and - 10 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 11 of 78 1 Fourteenth Amendments, when: (a) an officer drove the Lincoln (Petitioner’s wife’s car) 2 back to the scene of the accident with a bag of Petitioner’s bloody clothes in it, (b) the 3 Lincoln and Medina’s truck were photographed, transferring blood from vehicle to vehicle, 4 (c) not all areas of blood-transfer were examined, (d) Medina’s clothing, blood, hands, and 5 neck burn were not examined, and (e) Medina was allowed tamper with and disturb 6 evidence in his truck; (6) trial counsel was ineffective for: (a) not moving for sanctions for 7 the State’s failure to complete discovery and disclose evidence, (b) not addressing the 8 police failure to follow protocol and procedures, (c) failing to protect Petitioner’s rights to 9 fair access to the evidence, exhibits, and witnesses, (d) failing to independently collect, 10 test, and examine the evidence, (e) not objecting to Laughlin’s absence from trial or 11 requesting a telephonic appearance as an alternative, and (f) not submitting a limiting 12 instruction on Petitioner’s parole status; (7) appellate counsel was ineffective, denying 13 Petitioner adequate and effective representation in violation of the Fifth, Sixth, and 14 Fourteenth Amendments for failing to raise issues including: (a) denial of a fair trial, (b) 15 insufficient evidence to support the verdict, (c) denial of compulsory process because 16 Laughlin and John did not testify at trial, (d) prosecutorial misconduct for withholding the 17 recording of Laughlin’s 911 call, vouching for officers’ mistakes as excusable, stating the 18 defense presented a smoke and mirrors case, repeatedly referring to Petitioner’s parole 19 status in rebuttal closing arguments, and failing to investigate Medina’s injuries and submit 20 photographs, (e) loss of presumption of innocence from photographs showing Petitioner 21 handcuffed and in a neck brace, and (f) the trial court sentenced Petitioner to multiple 22 punishments under a single prosecution when concurrent terms should have been imposed; 23 and (8) the trial court sentenced Petitioner to consecutive prison terms as multiple 24 punishments for a singular prosecution when governing law required that the terms be 25 concurrent, violating the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Ex. QQ at 65– 26 71). In his reply to the State’s response, Petitioner requested that the court order that any 27 available evidence in the State’s custody that was not previously collected, tested for DNA, 28 or submitted to the jury be tested, and that Laughlin and John be subpoenaed to testify at - 11 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 12 of 78 1 an evidentiary hearing. (Ex. TT). 2 On August 16, 2016 the Rule 32 court issued its order dismissing the PCR 3 proceeding. (Ex. UU). The court broadly categorized all of Petitioner’s claims as either 4 prosecutorial misconduct or IAC. The court first found that, other than the IAC claims, all 5 of Petitioner’s claims, including the prosecutorial misconduct claims such as selective 6 prosecution and spoliation of evidence, were precluded under Rule 32.2(a)(3) because they 7 could have been raised at trial or on direct appeal. Id. at 173. As to Petitioner’s IAC claims, 8 the court found that Petitioner failed to state a colorable claim for relief under Strickland 9 because he had failed to show that counsel’s performance was deficient or that the alleged 10 deficiency prejudiced him. Id. at 173–74. The court reasoned that there was a strong 11 presumption that counsel’s actions fell within the broad range of reasonable conduct, and 12 that Petitioner failed to demonstrate that counsel’s actions fell outside of this range or were 13 otherwise deficient. Id. at 174. The court also found that Petitioner failed to show prejudice, 14 stating that the “petition nowhere establishes that, had counsel done any or all of the things 15 Defendant says should have been done, that the outcome would have been any different.” 16 Id. The court further commented that “given Defendant’s theory of the case—that he 17 confronted two intoxicated individuals who attempted to carjack his wife’s car and yet 18 somehow he ended up being driven from the scene by one of the carjackers in the 19 carjackers’ truck—showing prejudice is virtually impossible.” Id. The court therefore 20 dismissed the Rule 32 petition. 21 On September 1, 2016 Petitioner filed a notice of appeal and a petition for review 22 in the Arizona COA. (Exs. VV, WW, and XX). Petitioner presented two issues for review: 23 (1) did the trial court err in dismissing the PCR petition where Petitioner alleged 24 constitutional deprivations by the State and the court did not require an evidentiary hearing 25 or DNA testing, in violation of the Fifth, Sixth, and Fourteenth Amendments, Arizona 26 Constitution, Ariz. R. Crim. P. 15, and Ariz. R. Evid. 201(c)(2); and (2) were the trial 27 court’s decisions, orders, and sentences in violation of the United States Constitution, 28 Arizona Constitution, A.R.S. § 13-116, and Rule 32.8(a), causing the court to lose subject - 12 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 13 of 78 1 matter jurisdiction for refusing to secure Petitioner’s constitutional rights, in violation of 2 the Fifth, Sixth, and Fourteenth Amendments and Arizona Constitution. (Ex. WW at 4). 3 Petitioner also presented a list of issues not decided by the trial court: (1) pre-accusation 4 delay where Medina was allowed to access his truck before an indictment or formal charges 5 were filed, disturbing evidence before defense access, violating Petitioner’s due process 6 rights under the Fifth, Sixth, and Fourteenth Amendments, Arizona Constitution, and 7 Arizona Rules of Evidence; (2) selective prosecution where the State did not collect 8 evidence from Medina’s person, allowed him to testify against Petitioner, and allowed him 9 to access his truck, violating the Fifth, Sixth, and Fourteenth Amendments, Arizona 10 Constitution, and Arizona Rules of Evidence; (3) denial of the presumption of innocence 11 when the State’s exhibits showed Petitioner in a neck brace and handcuffed to the hospital 12 bed, violating the Fifth, Sixth, and Fourteenth Amendments and Arizona Constitution; (4) 13 prosecutorial misconduct where the State failed to test and collect all available evidence 14 including the sun visor, Laughlin’s 911 call, and photographs of Medina’s injuries; the 15 prosecutor committed perjury by stating Petitioner was the only one with injuries consistent 16 with the inside of Medina’s truck; the prosecutor allowed John and Laughlin to be absent 17 from trial; and the prosecutor vouched for the State’s mistakes while saying the defense 18 presented a smoke and mirrors case, repeatedly referred to Petitioner’s parole status, and 19 presented an unsubstantiated and unproven personal theory, violating the Fifth, Sixth, and 20 Fourteenth Amendments, Arizona Constitution, and Arizona Rules of Professional 21 Conduct and Ethical Responsibilities; (5) mishandling of evidence where the State allowed 22 an officer to drive the Lincoln back to the scene with Petitioner’s blood in it, allowing cross 23 contamination, violating the Fifth, Sixth, and Fourteenth Amendments, Arizona 24 Constitution, Department Procedures, and Arizona Rules of Evidence; (6) ineffective 25 assistance of trial counsel for failing to: address the State’s incomplete discovery and pre- 26 indictment delay, protect Petitioner’s due process and compulsory process rights, object to 27 late disclosure of the sun visor, object to Laughlin’s and John’s absences from trial, and 28 submit a limiting instruction on Petitioner’s parole status, violating the Fifth, Sixth, and - 13 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 14 of 78 1 Fourteenth Amendments and Arizona Constitution; (7) ineffective assistance of appellate 2 counsel for failing to raise all colorable claims: denial of a fair trial, insufficient evidence 3 to support the verdict, violation of compulsory process, prosecutorial misconduct for 4 perjury and vouching, loss of presumption of innocence, and double punishment, violating 5 the Fifth, Sixth, and Fourteenth Amendments and Arizona Constitution; and (8) the trial 6 court failed to apply A.R.S. § 13-116, requiring that Petitioner’s sentences be concurrent, 7 violating the Fifth, Sixth, and Fourteenth Amendments and Arizona Constitution. (Ex. WW 8 at 4–7). As to the Rule 32 court’s dismissal of his claims as precluded, Petitioner alleged 9 that he had no opportunity to raise the claims earlier because appellate counsel failed to 10 raise them, and Petitioner only discovered the claims when he received all the transcripts. 11 Id. at 9. Petitioner further alleged that he was entitled to an evidentiary hearing and that the 12 failure to conduct one deprived him of due process and judicial notice because actual 13 innocence was at stake. Id. 14 After the State filed its response, Petitioner filed a reply demanding an evidentiary 15 hearing and arguing that the trial court’s failure to order DNA testing and an evidentiary 16 hearing denied him due process, compulsory process, and equal protection under the Fifth, 17 Sixth, and Fourteenth Amendments. (Ex. BBB at 13–14). Petitioner alleged that the COA 18 was required to take judicial notice of the facts and fundamental error, even if the claims 19 of error were not properly preserved. Id. at 14–15. Petitioner further argued that the State 20 had presented insufficient evidence with improper proof and relied on perjured statements 21 from officers and Medina. Id. at 16. 22 On January 4, 2018 the COA issued its decision granting review and denying relief. 23 (Ex. DDD). The court noted that “[a]bsent an abuse of discretion or error of law, this court 24 will not disturb a superior court’s ruling on a petition for post-conviction relief.” Id. at 25. 25 The court then stated that it had “reviewed the record in this matter, the superior court’s 26 order denying the petition for post-conviction relief, and the petition for review[,]” and 27 found that Petitioner had “not established an abuse of discretion.” Id. 28 On January 29, 2018 Petitioner filed a petition for review in the Arizona Supreme - 14 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 15 of 78 1 Court that exceeded the allowed page limit. (Exs. HHH and YYY). The court ordered 2 Petitioner to file a petition that did not exceed the word limit (Ex. III), and on February 12, 3 2018 Petitioner filed his revised petition for review (Ex. JJJ). Petitioner presented two 4 issues for review: (1) whether the COA abused its discretion in failing to decide that the 5 trial court abused its discretion when it admitted the sun visor evidence; and (2) the 6 Supreme Court should order testing of the sun visor and any other available evidence that 7 had not been previously tested. Id. at 71. Petitioner then presented a list of issues incorrectly 8 decided by the lower courts: (1) the trial court erred in dismissing PCR; (2) the trial court’s 9 decisions, orders, and sentence were in violation of the United States Constitution, Arizona 10 Constitution, and Arizona Rules and Statutes; (3) pre-indictment delay; (4) selective 11 prosecution; (5) denial of presumption of innocence; (6) prosecutorial misconduct; (7) 12 mishandling of evidence; (8) ineffective assistance of trial counsel; (9) appellate counsel 13 failed to raise cognizable issues; and (10) the trial court imposed consecutive sentences 14 that should have been concurrent under A.R.S. § 13-116. Id. at 71–75. 15 On July 30, 2018 the Arizona Supreme Court denied the petition for review (Ex. 16 OOO), and on August 30, 2018 the COA issued its mandate (Ex. GGG). 17 C. Habeas Petition 18 On February 19, 2019 Petitioner filed his Amended PWHC in this Court. (Doc. 7). 19 Petitioner alleges six grounds for relief and multiple sub-claims: 20 In Ground One Petitioner alleges that he is actually innocent in violation of the Fifth, 21 Sixth, and Fourteenth Amendments. (Doc. 7 at 6). Petitioner bases this claim on Kendrick 22 John’s police interview shortly after the fatal accident and alleges that John saw Medina 23 drive away in the truck that caused the accident. Petitioner further alleges that John should 24 have been secured as an eyewitness for trial. 25 In Ground Two Petitioner alleges ineffective assistance of trial counsel in violation 26 of the Fifth, Sixth, and Fourteenth Amendments and Petitioner’s due process and 27 compulsory process rights because: (a) counsel failed to secure Cheryl Laughlin as a 28 witness or object to her absence at trial and failed to request that she appear telephonically; - 15 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 16 of 78 1 (b) counsel failed to subpoena and secure Jeffrey Steiner as a witness; (c) counsel failed to 2 object to Kendrick John’s absence and allowed the trial to proceed without him as a witness 3 and did not move the State to bring John to justice on his active warrants; (d) counsel failed 4 to submit a limiting instruction on Petitioner’s parole status, causing fundamental error and 5 denying Petitioner the right to a fair trial; (e) counsel failed to file a motion in limine to 6 preclude the State from introducing a sun visor on day five of trial when counsel knew 7 about the sun visor before trial; (f) the State’s investigation was incomplete and counsel 8 failed to conduct his own investigation of the bloodwork and DNA testing of Medina, 9 including blood on the steering wheel and DNA on the sun visor; and (g) counsel failed to 10 provide Petitioner with necessary disclosure including police reports, interviews, and 11 transcribed recordings, and only gave Petitioner one manilla envelope less than an inch 12 thick. (Doc. 7 at 7–13). 13 In Ground Three Petitioner alleges prosecutorial misconduct in violation of the 14 Fifth, Sixth, and Fourteenth Amendments because: (a) the prosecutor used a “back door” 15 to unfairly inform the jury of Petitioner’s parole status;17 (b) the prosecutor committed 16 perjury to the tribunal by failing to submit Medina’s medical records and stating Petitioner 17 was the only one with injuries consistent with the inside of the truck while knowing Medina 18 had severe, accident-type injuries;18 and (c) the prosecutor improperly vouched for the 19 State’s incomplete investigation and admitted mistakes were made.19 (Doc. 7 at 14–16). 20 In Ground Four Petitioner alleges that he was denied the right to confront witnesses 21 against him in violation of the Fifth, Sixth, and Fourteenth Amendments because John, 22 Laughlin, and Steiner were not present at trial. (Doc. 7 at 17).20 23 In Ground Five Petitioner alleges that his due process rights under the Fifth, Sixth, 24 and Fourteenth Amendments were violated because: (a) the trial court denied his Rule 32 25 26 17 Petitioner also alleges this violates the Arizona Constitution. 18 Petitioner also alleges this violates the rules of professional conduct and ethical 27 responsibilities. 19 Petitioner also alleges this violates the rules of professional conduct and ethical 28 responsibilities. 20 Petitioner also states that this violates due process and compulsory process. - 16 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 17 of 78 1 petition and did not hold an evidentiary hearing under 38.8(a) entitlement,21 denying due 2 process and judicial notice; (b) he was denied the presumption of innocence when trial 3 exhibits showed Petitioner in a neck brace and handcuffed to the hospital bed when he had 4 no neck injuries and was not under arrest; (c) he was selectively prosecuted because Medina 5 was a potential suspect and had severe injuries but the police collected no evidence from 6 him, Medina was allowed to testify against Petitioner, and the police allowed Medina to 7 access his truck before defense counsel had an opportunity to examine it; (d) there was a 8 110-day pre-accusation delay between the incident and the indictment that allowed the 9 State to not completely investigate all available evidence; specifically, blood on the 10 steering wheel and evidence from Medina was not collected; (e) the State failed to disclose 11 the entirety of Cheryl Laughlin’s 911 call; (f) he was subject to double punishment when 12 the court imposed consecutive sentences and should have imposed concurrent terms 13 pursuant to Ariz. Rev. Stat. § 13-116; and (g) the police failed to follow procedures and 14 protocols to impound and preserve evidence and caused cross-contamination of evidence 15 and tracking of blood when Deputy Gonzales drove the Lincoln with Petitioner’s blood in 16 it to the scene of the accident, and photos were taken of the inside and outside of the truck 17 and the Lincoln. (Doc. 7 at 18–24). 18 In Ground Six Petitioner alleges ineffective assistance of appellate counsel in 19 violation of the Fifth, Sixth, and Fourteenth Amendments and the Arizona Constitution 20 based on counsel’s failure to raise and preserve the cognizable issues of prosecutorial 21 misconduct,22 insufficiency of the evidence, and double punishment/consecutive 22 sentences, depriving fundamental preservation and exhaustion of the issues. (Doc. 7 at 25). 23 Petitioner requests immediate release from custody. (Doc. 7 at 27). 24 II. STANDARD OF REVIEW 25 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the 26 21 The Court presumes that Petitioner intended to cite to former Ariz. R. Crim. P. 32.8(a) (effective through December 31, 2019) concerning evidentiary hearings in PCR 27 proceedings, as there is no Rule 38.8(a) and Rule 38 applies to deferred prosecution programs. 28 22 Petitioner does not specify what claims of prosecutorial misconduct appellate counsel should have raised. - 17 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 18 of 78 1 federal court’s power to grant a petition for a writ of habeas corpus on behalf of a state 2 prisoner. First, the federal court may only consider petitions alleging that a person is in 3 state custody “in violation of the Constitution or laws or treaties of the United States.” 28 4 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant 5 habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. 6 Additionally, if the petition includes a claim that was adjudicated on the merits in state 7 court proceedings, federal court review is limited by § 2254(d). 8 A. Exhaustion 9 A state prisoner must exhaust his state remedies before petitioning for a writ of 10 habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O’Sullivan v. Boerckel, 526 11 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts 12 the opportunity to rule upon the merits of his federal claims by fairly presenting them to 13 the state’s highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 14 27, 29 (2004) (“To provide the State with the necessary opportunity, the prisoner must 15 fairly present her claim in each appropriate state court . . . thereby alerting the court to the 16 federal nature of the claim.”). In Arizona, unless a prisoner has been sentenced to death, 17 the highest court requirement is satisfied if the petitioner has presented his federal claim to 18 the Arizona COA, either through the direct appeal process or post-conviction proceedings. 19 Crowell v. Knowles, 483 F. Supp. 2d 925, 931–33 (D. Ariz. 2007). 20 A claim is fairly presented if the petitioner describes both the operative facts and 21 the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 22 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 23 2007). The petitioner must have “characterized the claims he raised in state proceedings 24 specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), 25 opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “If a petitioner fails to 26 alert the state court to the fact that he is raising a federal constitutional claim, his federal 27 claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson 28 v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general appeals to broad - 18 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 19 of 78 1 constitutional principles, such as due process, equal protection, and the right to a fair trial, 2 are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 3 1999). 4 However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims 5 in state court meets the technical requirements for exhaustion” if there are no state remedies 6 still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “This is 7 often referred to as ‘technical’ exhaustion because although the claim was not actually 8 exhausted in state court, the petitioner no longer has an available state remedy.” Thomas v. 9 Schriro, 2009 WL 775417, at *4 (D. Ariz. March 23, 2009). “If no state remedies are 10 currently available, a claim is technically exhausted,” but, as discussed below, the claim is 11 procedurally defaulted and is only subject to federal habeas review in a narrow set of 12 circumstances. Garcia v. Ryan, 2013 WL 4714370, at *8 (D. Ariz. Aug. 29, 2013). 13 B. Procedural Default 14 If a petitioner fails to fairly present his claim to the state courts in a procedurally 15 appropriate manner, the claim is procedurally defaulted and generally barred from federal 16 habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802–05 (1991). There are two categories 17 of procedural default. First, a claim may be procedurally defaulted in federal court if it was 18 actually raised in state court but found by that court to be defaulted on state procedural 19 grounds. Coleman, 501 U.S. at 729–30. Second, the claim may be procedurally defaulted 20 if the petitioner failed to present the claim in a necessary state court and “the court to which 21 the petitioner would be required to present his claims in order to meet the exhaustion 22 requirement would now find the claims procedurally barred.” Id. at 735 n.1; O’Sullivan, 23 526 U.S. at 848 (when time for filing state court petition has expired, petitioner’s failure to 24 timely present claims to state court results in a procedural default of those claims); Smith 25 v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court 26 resulted in procedural default of claims for federal habeas purposes when state’s rules for 27 filing petition for post-conviction relief barred petitioner from returning to state court to 28 exhaust his claims). - 19 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 20 of 78 1 When a petitioner has procedurally defaulted his claims, federal habeas review 2 occurs only in limited circumstances. “A state prisoner may overcome the prohibition on 3 reviewing procedurally defaulted claims if he can show cause to excuse his failure to 4 comply with the state procedural rule and actual prejudice resulting from the alleged 5 constitutional violation.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (internal quotations 6 and citation omitted); Martinez v. Ryan, 566 U.S. 1, 10 (2012) (“A prisoner may obtain 7 federal review of a defaulted claim by showing cause for the default and prejudice from a 8 violation of federal law.”). Cause requires a showing “that some objective factor external 9 to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 10 Murray v. Carrier, 477 U.S. 478, 488 (1986). Impediments to compliance may include 11 interference by officials that makes compliance with the state’s procedural rule 12 impracticable, a showing that the factual or legal basis for the claim was not reasonably 13 available, or the procedural default was the result of ineffective assistance of counsel. Id. 14 at 488–89. Prejudice requires “showing, not merely that the errors at his trial created a 15 possibility of prejudice, but that they worked to his actual and substantial disadvantage, 16 infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 17 456 U.S. 152, 170 (1982). The Court need not examine the existence of prejudice if the 18 petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Thomas 19 v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991). 20 Additionally, a habeas petitioner “may also qualify for relief from his procedural 21 default if he can show that the procedural default would result in a ‘fundamental 22 miscarriage of justice.’” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting 23 Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule is 24 limited to habeas petitioners who can establish that “a constitutional violation has probably 25 resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327; see 26 also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028. 27 C. Adjudication on the Merits and § 2254(d) 28 The Ninth Circuit has held that “a state has ‘adjudicated’ a petitioner’s constitutional - 20 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 21 of 78 1 claim ‘on the merits’ for purposes of § 2254(d) when it has decided the petitioner’s right 2 to post-conviction relief on the basis of the substance of the constitutional claim advanced, 3 rather than denying the claim on the basis of a procedural or other rule precluding state 4 court review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). 5 If a habeas petition includes a claim that was properly exhausted, has not been 6 procedurally defaulted, and was adjudicated on the merits in state court proceedings, 7 federal court review is limited by § 2254(d). Under § 2254(d)(1), a federal court cannot 8 grant habeas relief unless the petitioner shows: (1) that the state court’s decision was 9 contrary to federal law as clearly established in the holdings of the United States Supreme 10 Court at the time of the state court decision, Greene v. Fisher, 565 U.S. 34, 38 (2011); (2) 11 that it “involved an unreasonable application of” such law, § 2254(d)(1); or (3) that it “was 12 based on an unreasonable determination of the facts” in light of the record before the state 13 court, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86 (2011). This standard is 14 “difficult to meet.” Richter, 562 U.S. at 102. It is also a “highly deferential standard for 15 evaluating state court rulings . . . which demands that state court decisions be given the 16 benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal quotations 17 and citation omitted). 18 III. ANALYSIS 19 The undersigned finds that Petitioner’s claims in Ground One, Ground Five (a), (f), 20 and (g), and the portions of Ground Three (a), (b), and (c) and Ground Six that allege 21 violations of the Arizona Constitution and Arizona Rules of Professional Conduct, are not 22 cognizable on habeas review. The undersigned further finds that Petitioner’s claims in 23 Ground Two (b), (e), (f), and (g), and part of Ground Two (a), are unexhausted and 24 procedurally defaulted because the court to which Petitioner would be required to present 25 his claims in order to meet the exhaustion requirement would now find the claims 26 procedurally barred. The undersigned finds that Petitioner’s claims in Ground Three (a), 27 Ground Four, and Ground Five (e) are unexhausted and expressly procedurally defaulted 28 because the state court applied a plain procedural bar. Additionally, the undersigned finds - 21 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 22 of 78 1 that Petitioner’s claims in Ground Three (b) and (c), and Ground Five (b), (c), and (d), were 2 properly exhausted but nonetheless procedurally defaulted because the state court applied 3 a plain procedural bar. The undersigned further finds that Petitioner does not show cause 4 and prejudice or a fundamental miscarriage of justice to excuse the procedural default of 5 his claims. Finally, the undersigned addresses Petitioner’s claims that are properly 6 exhausted, not procedurally defaulted, and were adjudicated on the merits in state court 7 proceedings, and concludes that Petitioner is not entitled to relief on Ground Two (c) and 8 (d), part of Ground Two (a), and Ground Six. Accordingly, for the reasons explained below, 9 the undersigned recommends that the District Court deny the PWHC. 10 A. Non-Cognizable Claims 11 Habeas is not the remedy for every legal error—federal habeas relief is only 12 available to state prisoners to correct violations of the United States Constitution, federal 13 laws, or treaties of the United States. 28 U.S.C. § 2254(a). Habeas petitioners must plead 14 their claims with particularity and must specify all grounds for relief and the facts 15 supporting those grounds. Rule 2(c), Rules Governing § 2254 cases; Mayle v. Felix, 545 16 U.S. 644, 656 (2005). Further, “it is not the province of a federal habeas court to reexamine 17 state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 18 (1991) (“federal habeas corpus relief does not lie for errors of state law”). This Court 19 presumes that the state court properly applied the law, see, e.g., Holland v. Jackson, 542 20 U.S. 649, 655 (2004); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (state court decisions 21 must “be given the benefit of the doubt”), and gives deference to the trier of fact, Wright v. 22 West, 505 U.S. 277, 296 (1992); Sumner v. Mata, 455 U.S. 591 (1982). A petitioner also 23 cannot transform his state law claims into federal ones merely by asserting a violation of 24 due process. Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“‘A mere error of state law . . . 25 is not a denial of due process.’” (quoting Engle, 456 U.S. at 121 n.21)); see also Poland v. 26 Stewart, 169 F.3d 573, 584 (9th Cir. 1999); Langford v. Day, 110 F.3d 1380, 1389 (9th 27 Cir. 1996). Relatedly, a petitioner cannot recast his state law claim as a federal 28 constitutional challenge to the sufficiency of the evidence. Curtis v. Montgomery, 552 F.3d - 22 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 23 of 78 1 578, 582 (7th Cir. 2009). However, violations of state law are cognizable on habeas if the 2 state court’s application of state law was so arbitrary or capricious as to constitute an 3 independent due process violation that rendered the trial fundamentally unfair. Lewis v. 4 Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984); Lyons v. Brady, 5 666 F.3d 51, 55–56 (1st Cir. 2012). 6 Here, the undersigned finds that some of Petitioner’s claims appear to be based on 7 the state court’s determination of a state law issue, and habeas relief does not lie for errors 8 of state law. The undersigned further finds that Petitioner’s claim of actual innocence is 9 not cognizable as an independent ground for habeas relief. 10 i. Ground One: Actual Innocence 11 Petitioner alleges that he is actually innocent based on Kendrick John’s interview 12 with Detective LaBenz that took place shortly after the fatal accident. (Doc. 7 at 6). 13 Petitioner alleges that Detective LaBenz stated “we know who was driving the truck and it 14 was not your friend,” that a complete investigation was not conducted, and that LaBenz 15 “made up his mind he knew who was driving the truck.” Id. Petitioner points to statements 16 in John’s interview such as “he took the truck and left” as alleged evidence that Medina 17 was driving the truck at the time of the fatal collision. (Doc. 7-1 [Petitioner’s Ex. I] at 18 61:14–17).23 Respondents argue that this claim is not cognizable because the Ninth Circuit 19 has never recognized a free-standing claim of actual innocence on habeas. 20 “Claims of actual innocence based on newly discovered evidence have never been 21 held to state a ground for federal habeas relief absent an independent constitutional 22 violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 23 U.S. 390, 400 (1993). “This rule is grounded in the principle that federal habeas courts sit 24 to ensure that individuals are not imprisoned in violation of the Constitution—not to correct 25 errors of fact.” Id. (citing Moore v. Dempsey, 261 U.S. 86, 87–88 (1923) (Holmes, J.) 26 (“[W]hat we have to deal with [on habeas review] is not the petitioners’ innocence or guilt 27 23 As discussed later in this opinion, John did not testify at trial. The statements Petitioner 28 relies on are from a transcript of John’s interview with LaBenz that Petitioner attached to his PWHC. - 23 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 24 of 78 1 but solely the question whether their constitutional rights have been preserved.”)). 2 Here, Petitioner is not entitled to federal habeas relief based solely on his claim of 3 actual innocence of the criminal acts underlying his conviction. See Coley v. Gonzalez, 55 4 F.3d 1385, 1387 (9th Cir. 1995). Even if Petitioner’s claim of innocence was a cognizable 5 claim in this habeas proceeding, Petitioner has not offered any evidence that affirmatively 6 proves his innocence. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (“[A] 7 habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating 8 doubt about his guilt, and must affirmatively prove that he is probably innocent.”); Jones 9 v. Taylor, 763 F.3d 1242, 1251 (9th Cir. 2014) (“Evidence that merely undercuts trial 10 testimony or casts doubt on the petitioner’s guilt, but does not affirmatively prove 11 innocence, is insufficient to merit relief on a freestanding claim of actual innocence.”). 12 Rather, the evidence Petitioner relies on consists of vague statements by an intoxicated and 13 sometimes unintelligible John that Medina left in the truck, that John woke up and Medina 14 was gone and the truck was gone, and that John didn’t want his friend to get in trouble for 15 drinking and driving. See Doc. 7-1 Ex. I. John’s statements do not establish when Medina 16 allegedly left in the truck, let alone affirmatively prove that Medina was the driver of the 17 truck at the time of the fatal collision. Based on the Court’s review of the record in this 18 matter, the exact sequence of events leading up to the fatal collision is unclear and will 19 likely remain so due to Petitioner’s and witnesses’ intoxication at the time of the accident, 20 their changing stories of what transpired, and their alleged confusion and memory loss. At 21 most, the statements Petitioner relies on in John’s interview cast some doubt on the State’s 22 theory as to who was driving the truck at the time of the fatal collision, but this evidence 23 falls far from the threshold required to merit relief on a freestanding claim of actual 24 innocence. See, e.g., Carriger, 132 F.3d at 477 (court rejected freestanding actual 25 innocence claim where petitioner had “presented no evidence, for example, demonstrating 26 he was elsewhere at the time of the murder, nor [was] there any new and reliable physical 27 evidence, such as DNA, that would preclude the possibility of guilt”); Jones, 763 F.3d at 28 1251 (petitioner failed to meet “extraordinarily high” and “truly persuasive” showing - 24 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 25 of 78 1 required for habeas relief on a freestanding claim of actual innocence where there was no 2 new and reliable physical evidence, victim recantation was not sufficiently reliable such 3 that every juror would credit it, and there was other testimonial evidence supporting the 4 verdict); see generally Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000) (even where 5 evidence is “almost entirely circumstantial and relatively weak,” it may be sufficient to 6 support a conviction); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) 7 (“Circumstantial evidence and inferences drawn from it may be sufficient to sustain a 8 conviction.”); United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir. 1986) (the 9 government is entitled to all reasonable inferences that may be drawn from the evidence).24 10 Accordingly, the undersigned finds that Petitioner’s Ground One claim should be 11 denied.25 12 ii. Ground Five (a) 13 Petitioner alleges that the Rule 32 court’s denial of his PCR petition and failure to 14 hold an evidentiary hearing under Rule 32.8(a) denied him due process and judicial notice. 15 This argument is premised on the state court’s denial of an evidentiary hearing under Ariz. 16 R. Crim. P. 32 and thus concerns a state law issue not cognizable on federal habeas review. 17 See Estelle, 502 U.S. at 67–68. Habeas is not the remedy for every legal error, nor is it a 18 forum for petitioners to argue alleged errors in the state PCR process. See Franzen v. 19 Brinkman, 877 F.2d 26 (9th Cir. 1989) (“a petition alleging errors in the state post- 20 conviction review process is not addressable through habeas corpus proceedings”). This 21 claim fails to allege a specific, federal constitutional violation, and Petitioner cannot 22 transform his state law claim into a federal claim merely by alleging a violation of due 23 24 Nor is the evidence Petitioner relies on “new.” Detective LaBenz’s interview with John was available prior to trial, and Petitioner’s counsel questioned LaBenz about the interview 24 on cross-examination. See Ex. P. at 745–55. During a sidebar with the trial judge, Petitioner’s counsel confirmed that John’s statement during the interview was not “I saw 25 Medina drive away”; rather, the statements John made were that Medina was gone and the truck was gone. Id. at 755. 26 25 The undersigned further rejects Petitioner’s gross speculation that Detective LaBenz had some hidden motive to implicate someone other than Medina as the driver of the truck at 27 the time of the fatal accident and lied to the grand jury. (Doc. 17 at 20). At trial, LaBenz testified that when he spoke to John after the incident, LaBenz alluded that the police had 28 people in mind as suspects. (Ex. P at 745:23–746:9). LaBenz made this statement based on the information that he had at the time from other officers and the hospitals. Id. - 25 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 26 of 78 1 process. Rivera, 556 U.S. at 158; Mayle, 545 U.S. at 646; see also Jones v. Gomez, 66 F.3d 2 199, 205 (9th Cir. 1995) (a petitioner’s conclusory suggestion that a constitutional right 3 has been violated falls “far short of stating a valid claim of constitutional violation” 4 sufficient to provide a basis for habeas relief). Accordingly, the undersigned finds that 5 Ground Five (a) is not cognizable on habeas review. 6 iii. Ground Five (f) 7 Petitioner alleges that he was wrongly subjected to double punishment when the 8 trial court imposed consecutive sentences because his sentences should have been 9 concurrent under Ariz. Rev. Stat. § 13-116.26 This argument is premised on whether the 10 trial court’s sentences complied with state statutes and thus concerns a state law issue not 11 cognizable on federal habeas review. See Estelle, 502 U.S. at 67–68; Rivera, 556 U.S. at 12 158; Mayle, 545 U.S. at 646; Jones, 66 F.3d at 205. Further, Petitioner was charged and 13 convicted of two separate acts: second-degree murder, in violation of Ariz. Rev. Stat. § 13- 14 1104, and leaving the scene of a fatal injury accident, in violation of Ariz. Rev. Stat. § 28- 15 661. Section 28-661 specifically provides that “[t]he sentence imposed on a person for a 16 conviction under this section shall run consecutively to any sentence imposed on the person 17 for other convictions on any other charge related to the accident.” Thus, Petitioner’s 18 sentence appears to comply with state law. Accordingly, the undersigned finds that Ground 19 Five (f) is not cognizable on habeas review. 20 iv. Ground Five (g) 21 Petitioner alleges that the police failed to follow procedures and protocols to 22 impound and preserve evidence and caused cross-contamination of evidence. Officers’ 23 failure to follow department procedures and protocols does not allege a federal, 24 constitutional violation, and Petitioner cannot transform this claim into a federal habeas 25 claim merely by alleging a violation of due process. See Rivera, 556 U.S. at 158; Mayle, 26 545 U.S. at 646; Jones, 66 F.3d at 205. Accordingly, the undersigned finds that Ground 27 26 Ariz. Rev. Stat. § 13-116 states that “an act or omission which is made punishable in 28 different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.” - 26 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 27 of 78 1 Five (g) is not cognizable on habeas review. 2 v. Claims Pursuant to the Arizona Constitution and Arizona Rules of 3 Professional Conduct 4 In addition to the alleged federal constitutional violations, Petitioner alleges that 5 several of his claims also violate the Arizona Constitution and the Arizona Rules of 6 Professional Conduct.27 Habeas relief is only available for violations of the United States 7 Constitution. 28 U.S.C. § 2254(a). Thus, to the extent that Petitioner alleges separate claims 8 based on the Arizona Constitution or Arizona Rules of Professional Conduct, the 9 undersigned finds that the claims are not cognizable on habeas review.28 10 B. Unexhausted and Procedurally Defaulted Claims 11 i. Ground Two (a) 12 Petitioner alleges that trial counsel was ineffective for failing to secure Cheryl 13 Laughlin as a witness or object to her absence and failing to request that she appear 14 telephonically. Claims for IAC are properly raised in a Rule 32 petition for PCR. While 15 Petitioner did present part of this claim to the state courts, he did not exhaust the specific 16 claim that he now makes that counsel was ineffective for failing to request that Laughlin 17 appear telephonically. In his second PCR petition, Petitioner alleged that trial counsel was 18 ineffective for failing to object to Laughlin’s absence or offer a telephonic appearance as a 19 reasonable alternative. (Ex. QQ at 69). However, in his petition for review to the COA, 20 Petitioner only alleged that counsel was ineffective for failing to object to Laughlin’s 21 absence from trial and did not specifically argue that counsel was ineffective for failing to 22 request that Laughlin appear telephonically. (Ex. WW at 7). 23 “As a general matter, each ‘unrelated alleged instance [] of counsel’s 24 27 See Ground Three (a), (b), and (c), and Ground Six. 25 28 Where a petitioner fails to allege a deprivation of a federal right, it is unnecessary to determine whether he has satisfied the exhaustion requirement; the claim is simply 26 dismissed as not cognizable. Engle, 456 U.S. at 121 n.19. (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a 27 situation to inquire whether the prisoner preserved his claim before the state courts.”). Thus, as discussed in the foregoing section, because the undersigned finds that some of the 28 grounds alleged in the PWHC fail to state a cognizable claim for habeas relief, the undersigned does not address exhaustion of these claims. - 27 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 28 of 78 1 ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 2 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th 3 Cir. 2005)). And, exhaustion requires that a petitioner fairly present each claim to the state 4 court in a procedurally appropriate manner. Baldwin, 541 U.S. at 29. “[A] petitioner 5 satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire 6 direct appellate process of the state, or (2) throughout one entire judicial post-conviction 7 process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting 8 Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). 9 Accordingly, the claim that trial counsel was ineffective for failing to request that 10 Laughlin appear telephonically is unexhausted because Petitioner failed to properly present 11 this specific portion of his federal claim to the COA. See Ariz. R. Crim. P. 32.16(c)(4) (“A 12 party’s failure to raise any issue that could be raised in the petition for review . . . constitutes 13 a waiver of appellate review of that issue.”); Castillo v. McFadden, 399 F.3d 993, 998 (9th 14 Cir. 2004) (To properly exhaust a claim, a petitioner must “give the Arizona courts a ‘fair 15 opportunity’ to act on his federal [] claim before presenting it to the federal courts.”); Date 16 v. Schriro, 619 F. Supp. 2d 736, 786 (D. Ariz. 2008) (IAC claims unexhausted where 17 petitioner raised claims in Rule 32 petition but failed to raise claims in petition for review 18 to Arizona COA); Crowell, 483 F. Supp. at 931–33.29 19 ii. Ground Two (b) 20 Petitioner alleges that trial counsel was ineffective for failing to subpoena and 21 secure Jeffrey Steiner as a witness. While Petitioner made claims to the state courts 22 regarding counsel’s alleged failure to secure John and Laughlin as witnesses, Petitioner did 23 not specifically raise a claim that trial counsel was ineffective for failing to subpoena 24 Steiner.30 Asserting an IAC claim “based on one set of facts [presented to the state courts], 25 29 Moreover, even assuming that Petitioner did properly exhaust this claim to the COA, as discussed further in Section D below, the PCR court rejected Petitioner’s IAC claims for 26 failure to state a colorable claim for relief (Ex. UU at 173–74), a finding upheld by the COA when it denied the petition for review (Ex. DDD). 27 30 In the second PCR petition, Petitioner did not list a claim that trial counsel was ineffective for failing to subpoena Steiner. See Ex. QQ at 69–70. In the argument section 28 of the petition, Petitioner alleged that trial counsel failed to have “Laughlin’s accompanied companion that night subpoenaed and present for trial . . . .” Id. at 90. In his petition for - 28 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 29 of 78 1 does not exhaust other claims of ineffective assistance of counsel based on different facts” 2 that were not presented to the state courts. Date, 619 F. Supp. 2d at 788; see also 3 Moormann, 426 F.3d at 1056–57 (new allegations of IAC not previously raised before the 4 state court cannot be addressed on habeas review); Gulbrandson, 738 F.3d at 992–993 5 (IAC claim before the state court regarding counsel’s failure to present witness testimony 6 about petitioner’s state of mind was insufficient to exhaust IAC claim before the federal 7 court that counsel was ineffective for failing to present testimony from same witness on 8 petitioner’s rehabilitation). Accordingly, Ground Two (b) is unexhausted because 9 Petitioner failed to properly present it to the state courts in a procedurally appropriate 10 manner. 11 iii. Ground Two (e) 12 Petitioner alleges that trial counsel was ineffective for failing to file a motion in 13 limine to preclude the State from introducing the sun visor at trial when counsel knew about 14 the sun visor before trial. In his second PCR petition, Petitioner argued generally that trial 15 counsel was ineffective for failing to request sanctions for the State’s failure to complete 16 discovery and disclose evidence but did not make any specific arguments regarding trial 17 counsel’s alleged ineffectiveness and the sun visor. (Ex. QQ at 69; 89–92). In his petition 18 for review to the COA, Petitioner argued that trial counsel was ineffective for failing to 19 object to the State’s alleged late disclosure of the sun visor. (Ex. WW at 7). Thus, 20 Petitioner’s claim to the COA is distinct from the claim that Petitioner now makes on 21 habeas—that counsel was ineffective for failing to file a motion in limine to have the 22 evidence precluded. See Date, 619 F. Supp. 2d at 788; Moormann, 426 F.3d at 1056–57; 23 Gulbrandson, 738 F.3d at 992–993; Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001) 24 (a petitioner fairly presents his claim in state court only if the state court claim described 25 both the same set of operative facts and the applicable law). Moreover, Petitioner failed to 26 raise the claim in his Rule 32 petition, depriving the trial court of the opportunity to address 27 and correct the alleged violation of Petitioner’s constitutional rights. See Baldwin, 541 U.S. 28 review to the COA, Petitioner only raised trial counsel’s ineffectiveness for failing to investigate and object to Laughlin’s and John’s absences from trial. (Ex. WW at 7). - 29 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 30 of 78 1 at 29; Castillo, 399 F.3d at 998; Crowell, 483 F. Supp. at 931–33. Accordingly, Ground 2 Two (e) is unexhausted because Petitioner failed to properly present it to the state courts in 3 a procedurally appropriate manner. 4 iv. Ground Two (f) 5 Petitioner alleges that trial counsel was ineffective for failing to conduct his own 6 investigation of Medina’s bloodwork and DNA, including the blood on the steering wheel 7 and the DNA on the sun visor. In his second PCR petition, Petitioner argued that trial 8 counsel was ineffective because he did not independently collect, test, and examine the 9 available evidence; specifically, counsel did not test or collect the uncollected blood 10 transfers, and did not request that Medina’s blood be drawn for DNA testing. (Ex. QQ at 11 69, 90). However, Petitioner did not argue that counsel was ineffective for failing to test 12 DNA on the sun visor. See Date, 619 F. Supp. 2d at 788; Moormann, 426 F.3d at 1056– 13 57; Gulbrandson, 738 F.3d at 992–993. Further, in his petition for review to the COA, 14 Petitioner did not allege that trial counsel was ineffective for failing to investigate Medina’s 15 blood and DNA or failing to investigate DNA on the sun visor. Rather, Petitioner only 16 presented claims to the COA that trial counsel was ineffective for failing to address issues 17 of the State’s incomplete discovery and pre-indictment delay, failing to protect Petitioner’s 18 due process and compulsory process rights, failing to object to late disclosure of the sun 19 visor, failing to object to Laughlin’s and John’s absences from trial, and failing to submit 20 a limiting instruction on Petitioner’s parole status. (Ex. WW at 7). The COA is not required 21 to address a claim that the petitioner fails to raise. See Ariz. R. Crim. P. 32.16(c)(4). 22 Accordingly, because Petitioner failed to raise the sun visor portion of this claim to the 23 Rule 32 court, and failed to raise the claim entirely to the COA, Ground Two (f) is 24 unexhausted because Petitioner failed to properly present it to the state courts in a 25 procedurally appropriate manner.31 See Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; 26 Crowell, 483 F. Supp. at 931–33; Tamalini, 249 F.3d at 898. 27 31 Moreover, even assuming that Petitioner did properly exhaust this claim, as discussed further in Section D below, the PCR court rejected all of Petitioner’s IAC claims for failure 28 to state a colorable claim for relief (Ex. UU at 173–74), a finding upheld by the COA when it denied the petition for review (Ex. DDD). - 30 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 31 of 78 1 v. Ground Two (g) 2 Petitioner alleges that trial counsel was ineffective for failing to provide Petitioner 3 with disclosure to review before trial, including police reports, interviews, and transcribed 4 recordings, and only gave Petitioner one manilla envelope of material to review. In his 5 second PCR petition, Petitioner made a general claim that trial counsel was ineffective 6 because he failed to protect Petitioner’s rights to fair access and presentation of the 7 evidence, exhibits, and witnesses to be submitted to the tribunal. (Ex. QQ at 69). In the 8 argument section of his petition, Petitioner also alleged that trial counsel failed to provide 9 Petitioner with the State’s disclosure, violating due process because Petitioner did not 10 receive all vital documents and records used against him. Id. at 92. However, Petitioner did 11 not raise this claim in his petition for review to the COA. 32 The COA is not required to 12 address a claim that the petitioner fails to raise. See Ariz. R. Crim. P. 32.16(c)(4). 13 Accordingly, Ground Two (g) is unexhausted because Petitioner failed to properly present 14 it to the state courts in a procedurally appropriate manner.33 See Baldwin, 541 U.S. at 29; 15 Castillo, 399 F.3d at 998; Crowell, 483 F. Supp. at 931–33. 16 vi. Ground Three (a) 17 Petitioner alleges that prosecutorial misconduct occurred when the prosecutor used 18 a “back door” to unfairly inform the jury of Petitioner’s parole status by asking Petitioner’s 19 wife, Shirley Chavez, whether she deliberately tried to get him away from the accident 20 21 22 23 24 32 Petitioner only presented claims to the COA that trial counsel was ineffective for failing 25 to address issues of the State’s incomplete discovery and pre-indictment delay, failing to protect Petitioner’s due process and compulsory process rights, failing to object to late 26 disclosure of the sun visor, failing to object to Laughlin’s and John’s absences from trial, and failing to submit a limiting instruction on Petitioner’s parole status. (Ex. WW at 7). 27 33 Even assuming that Petitioner did properly exhaust this claim, as discussed further in Section D below, the PCR court rejected all of Petitioner’s IAC claims for failure to state 28 a colorable claim for relief (Ex. UU at 173–74), a finding upheld by the COA when it denied the petition for review (Ex. DDD). - 31 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 32 of 78 1 scene because he was on parole at the time.34, 35 (Doc. 7 at 14). On direct appeal, Petitioner 2 argued that the trial court’s admission of evidence of his parole status without any limiting 3 instruction was reversible, fundamental error. (Ex. BB at 1376). Petitioner did not raise this 4 issue as a prosecutorial misconduct claim. In his first PCR petition, Petitioner alleged a 5 general claim of prosecutorial misconduct because the State allegedly lied to the jury, 6 misrepresented evidence, and failed to complete discovery or produce evidence. (Ex. OO 7 at 57). In his second PCR petition Petitioner argued that the prosecutor committed 8 misconduct by repeatedly referring to Petitioner’s parole status as the State’s theory of why 9 Petitioner left the scene of the accident. (Ex. QQ at 67, 86–87). In his petition for review 10 to the COA, Petitioner similarly alleged that the prosecutor committed misconduct by 11 repeatedly referring to Petitioner’s parole status. (Ex. WW at 6). Thus, the claims Petitioner 12 made on PCR regarding the prosecutor’s references to his parole status are distinct from 13 the claim that he now raises on habeas—that the prosecutor unfairly used a back door to 14 introduce testimony of Petitioner’s parole status. Accordingly, Ground Three (a) is 15 unexhausted because Petitioner failed to properly present it to the state courts in a 16 procedurally appropriate manner. See Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; 17 Crowell, 483 F. Supp. at 931–33.36 18 34 The record reflects that this testimony was actually elicited by Petitioner’s counsel on direct examination of Ms. Chavez. Counsel asked Ms. Chavez whether she was 19 “deliberately trying to get Craig away from the accident scene because he was on parole at the time?” Ms. Chavez responded, “Didn’t even cross my mind.” (Ex. R at 923:24–924:2). 20 On cross-examination, the following exchange occurred: BY MR. SERDEN: 21 Q. Now, your testimony was that you took him to the hospital because you were afraid he was going to bleed to death, 22 correct? A. Yes. 23 Q. Okay. And you’ve already told the jury that he was on parole, correct? 24 A. No, I didn’t tell anybody he was on parole. Q. Well, Mr. Conter asked you the question that he was on 25 parole and you answered yes, he was? A. Well, then I did. 26 (Ex. R at 942:1–11). 35 In his Reply, Petitioner states that he and his wife remember the prosecutor, not defense 27 counsel, eliciting the testimony about Petitioner’s parole status, and asserts that the trial transcripts are wrong. (Doc. 17 at 52). 28 36 Even assuming that Petitioner did properly exhaust this claim, the claim is nevertheless procedurally defaulted because the Rule 32 court applied an express procedural bar when - 32 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 33 of 78 1 vii. Ground Three (b) 2 Petitioner alleges that the prosecutor committed perjury to the tribunal by failing to 3 submit Medina’s medical records and by stating that Petitioner was the only one with 4 injuries consistent with the inside of the truck. Petitioner did not raise this claim on direct 5 appeal but did raise a similar claim in his PCR proceedings. In the amended PCR notice, 6 Petitioner asserted generally that the prosecutor had presented perjured testimony. (Ex. JJ 7 at 42). In the first PCR petition, Petitioner made similar general allegations that the State 8 had suppressed evidence, used perjured testimony, and committed prosecutorial 9 misconduct by lying to the jury, misrepresenting evidence, and failing to produce evidence. 10 (Ex. OO at 57). In his second PCR petition, Petitioner alleged that the State selectively 11 prosecuted him by withholding evidence of Medina’s photographed injuries and that the 12 prosecutor committed misconduct by withholding the photos, allowing perjured testimony, 13 and telling the jury that Petitioner was the only one with injuries consistent with the inside 14 of Medina’s truck. (Ex. QQ at 66, 85). Finally, in his petition for review to the COA, 15 Petitioner argued that the prosecutor committed misconduct and perjury when he told the 16 jury that Petitioner was the only one with injuries consistent with the inside of the truck 17 and failed to submit photographs of Medina’s injuries to the jury. (Ex. WW at 6). 18 Thus, to the extent that Petitioner did fairly and properly present this claim to the 19 state courts, the claim is exhausted. However, the claim is nonetheless procedurally 20 defaulted because the Rule 32 court applied an express procedural bar when it found that 21 all of Petitioner’s prosecutorial misconduct claims were precluded as waived by Rule 22 32.2(a)(3) because they could have been raised earlier. (Ex. UU). 23 ... 24 it found that all of Petitioner’s prosecutorial misconduct claims were precluded as waived 25 by Rule 32.2(a)(3) because they could have been raised earlier (Ex. UU), a finding upheld by the COA when it denied the petition for review (Ex. DDD). See Ariz. R. Crim. P. 26 32.2(a)(3) (a defendant is precluded from relief under Rule 32.1 based on any ground waived at trial or on appeal); see also Nunnemaker, 501 U.S. at 803 (a higher court’s 27 subsequent summary denial of review affirms the lower court’s application of a procedural bar); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (in evaluating state court 28 decisions, the federal habeas court looks through summary opinions to the last reasoned decision). - 33 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 34 of 78 1 viii. Ground Three (c) 2 Petitioner alleges that the prosecutor admitted mistakes were made and vouched for 3 the State’s incomplete investigation. Petitioner did not raise this claim on direct appeal but 4 did allege the claim in his PCR proceedings37 and petition for review to the COA.38 (Exs. 5 QQ and WW). Thus, because Petitioner fairly presented this claim to the state courts in a 6 procedurally appropriate manner, the claim is exhausted. However, the claim is 7 nevertheless procedurally defaulted because the Rule 32 court applied an express 8 procedural bar when it found that all of Petitioner’s prosecutorial misconduct claims were 9 precluded as waived by Rule 32.2(a)(3) because they could have been raised earlier. (Ex. 10 UU). 11 ix. Ground Four 12 Petitioner alleges that he was denied the right to confront witnesses against him 13 because John, Laughlin, and Steiner were not present at trial and that their absences 14 violated his due process and compulsory process rights. Petitioner did not raise this claim 15 on direct appeal. In his first PCR petition, Petitioner asserted a general violation of his 16 Sixth Amendment right to compulsory process for witnesses not at trial. (Ex. OO at 57). In 17 his second PCR petition, Petitioner alleged prosecutorial misconduct for the State allowing 18 witnesses to be absent from trial without requesting telephonic appearances or following 19 up on Laughlin’s hospitalization. (Ex. QQ at 67). Petitioner also alleged that trial counsel 20 was ineffective for failing to object to Laughlin’s absence from trial or requesting a 21 telephonic appearance as an alternative, and that appellate counsel was ineffective for 22 failing to raise a claim that compulsory process was denied when Laughlin and John did 23 not testify at trial. Id. at 69–70. In his petition for review to the COA, Petitioner again 24 alleged prosecutorial misconduct for allowing John and Laughlin to be absent from trial. 25 (Ex. WW at 6). Petitioner also alleged that trial counsel was ineffective for failing to protect 26 37 Alleging prosecutorial misconduct because the State admitted it made mistakes in 27 collecting evidence and the prosecutor vouched for the State’s case by excusing officers’ mistakes and stating the defense presented a smoke and mirrors case. (Ex. QQ at 67). 28 38 Alleging the prosecutor vouched for the State’s mistakes while saying the defense presented a smoke and mirrors case. (Ex. WW at 6). - 34 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 35 of 78 1 Petitioner’s due process and compulsory process rights, and failing to object to Laughlin’s 2 and John’s absences from trial. Id. at 7. Finally, Petitioner alleged appellate counsel was 3 ineffective for failing to raise a compulsory process claim for Laughlin’s and John’s 4 absences. Id. However, Petitioner presented these claims to the state courts as prosecutorial 5 misconduct or IAC claims. Petitioner did not raise the specific claim he now presents on 6 habeas: an independent confrontation clause claim alleging his due process and compulsory 7 process rights were violated because John, Laughlin, and Steiner were not present at the 8 trial. 9 The fact that Petitioner presented related prosecutorial misconduct and IAC claims 10 to the state courts is immaterial to exhaust the separate and distinct confrontation clause 11 claim that Petitioner makes here. See Grey v. Netherland, 518 U.S. 152, 162–63 (1996) (a 12 petitioner does not satisfy the exhaustion requirement “by presenting the state courts only 13 with the facts necessary to state a claim for relief[;]” the specific constitutional right 14 allegedly violated must also be identified); Tamalini, 249 F.3d at 898 (Sixth Amendment 15 right to counsel claim presented to state court did not exhaust Fourteenth Amendment due 16 process and equal protection claims made to circuit court); Lopez v. Schriro, 491 F.3d 1029, 17 1040 (9th Cir. 2007) (“in order to fulfill exhaustion requirements, a petitioner must present 18 to the state courts the substantial equivalent of the claim presented in federal court”).39 19 39 As this Court has explained: 20 Fair presentation requires a petitioner to describe both the 21 operative facts and the federal legal theory to the state courts. Reese, 541 U.S. at 28, 124 S. Ct. 1347. It is not enough that all 22 of the facts necessary to support the federal claim were before the state court or that a “somewhat similar” state law claim was 23 raised. Reese, 541 U.S. at 28, 124 S. Ct. 1347 (stating that a reference to ineffective assistance of counsel does not alert the 24 court to federal nature of the claim). Rather, the habeas petitioner must cite in state court to the specific constitutional 25 guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). 26 Similarly, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair 27 trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 28 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. - 35 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 36 of 78 1 Accordingly, Ground Four is unexhausted because Petitioner failed to properly present it 2 to the state courts in a procedurally appropriate manner.40 See Baldwin, 541 U.S. at 29; 3 Castillo, 399 F.3d at 998; Crowell, 483 F. Supp. at 931–33. 4 x. Ground Five (b) 5 Petitioner alleges that he was denied the presumption of innocence because trial 6 exhibits showed Petitioner in a neck brace and handcuffed to the hospital bed when he had 7 no neck injuries and was not under arrest. Petitioner did not raise this claim on direct 8 appeal. The first PCR petition included a general claim of unconstitutional loss of 9 presumption of innocence (Ex. OO at 57), and the second PCR petition argued that 10 Petitioner was denied the presumption of innocence because the jury received photos of 11 Petitioner handcuffed to the hospital bed and wearing a neck brace but he did not have any 12 neck injuries (Ex. QQ at 66). Petitioner alleged the same claim that he made in the second 13 PCR petition in his petition for review to the COA. (Ex. WW at 5). 14 Thus, because Petitioner fairly presented this claim to the state courts in a 15 procedurally appropriate manner, the claim is exhausted. However, the claim is nonetheless 16 procedurally defaulted because the Rule 32 court applied an express procedural bar when 17 2000) (insufficient for prisoner to have made “a general appeal to a constitutional guarantee,” such as a naked reference to 18 “due process,” or to a “constitutional error” or a “fair trial”). Likewise, a mere reference to the “Constitution of the United 19 States” does not preserve a federal claim. Gray v. Netherland, 518 U.S. 152, 162–63, 116 S. Ct. 2074, 135 L.Ed.2d 457 20 (1996). Even if the basis of a federal claim is “self-evident” or if the claim would be decided “on the same considerations” 21 under state or federal law, the petitioner must make the federal nature of the claim “explicit either by citing federal law or the 22 decision of the federal courts . . . .” Lyons, 232 F.3d at 668. A state prisoner does not fairly present a claim to the state court 23 if the court must read beyond the pleadings filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27, 124 S. 24 Ct. 1347. 25 Date, 619 F.Supp.2d at 764–65; see also Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal 26 rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). 27 40 Even if Petitioner had properly exhausted his Ground Four claims in state court, the PCR court rejected all of Petitioner’s IAC claims for failure to state a colorable claim for relief, 28 and further found that all of Petitioner’s remaining claims were precluded as waived by Rule 32.2(a)(3) because they could have been raised earlier. (Ex. UU). - 36 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 37 of 78 1 it found that all of Petitioner’s claims, with the exception of his IAC claims, were precluded 2 as waived by Rule 32.2(a)(3) because they could have been raised in an earlier proceeding. 3 (Ex. UU). 4 xi. Ground Five (c) 5 Petitioner alleges that he was subject to selective prosecution because Medina was 6 a potential suspect and had severe injuries but the police collected no evidence from him, 7 because Medina was allowed to testify against Petitioner, and because the police allowed 8 Medina to access his truck before defense counsel had an opportunity to examine it. 9 Petitioner did not raise this claim on direct appeal. Petitioner asserted a general claim of 10 selective prosecution in his first PCR petition. (Ex. OO at 57). In his second petition 11 Petitioner alleged that the State selectively prosecuted him and gave Medina preferential 12 treatment by not charging Medina with drunk driving, not testing Medina’s blood for DNA, 13 not testing Medina’s clothing for airbag residue or his clothing or hands for Petitioner’s 14 blood, withholding pictures of Medina’s injuries from the jury, allowing Medina to disturb 15 and tamper with evidence in the truck prior to any defense examination, and allowing 16 Medina to testify against Petitioner. (Ex. QQ at 65–66). In his petition for review to the 17 COA, Petitioner argued selective prosecution because the State did not collect evidence 18 from Medina’s person, allowed Medina to testify against Petitioner, and allowed Medina 19 to access his truck—substantially the same claims Petitioner now raises on habeas. (Ex. 20 WW at 5). 21 Thus, because Petitioner fairly presented this claim to the state courts in a 22 procedurally appropriate manner, the claim is exhausted. However, the claim is nonetheless 23 procedurally defaulted because the Rule 32 court applied an express procedural bar when 24 it found that all of Petitioner’s claims, with the exception of his IAC claims, were precluded 25 as waived by Rule 32.2(a)(3) because they could have been raised earlier. (Ex. UU). 26 xii. Ground Five (d) 27 Petitioner alleges that there was a 110-day pre-accusation delay between the 28 incident and the indictment that allowed the State to not completely investigate all available - 37 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 38 of 78 1 evidence; specifically, blood on the steering wheel and evidence from Medina. Petitioner 2 did not raise this claim on direct appeal. In the first PCR petition, Petitioner alleged an 3 unconstitutional pre-accusation delay claim. (Ex. OO at 57). In his second petition, 4 Petitioner argued that the State violated his due process rights during a 110-day pre- 5 accusation delay that allowed the State to not completely investigate all of the available 6 evidence including blood on the steering wheel, Medina’s blood and clothing, and a 7 handprint on the car window, and the State allowed Medina to access his truck and retrieve 8 property, disturbing the evidence before defense counsel could investigate it. (Ex. QQ at 9 65). In his petition for review to the COA, Petitioner alleged a pre-accusation delay where 10 Medina was allowed to access his truck before an indictment or formal charges were filed, 11 disturbing evidence before the defense could access it. (Ex. WW at 5). 12 Thus, to the extent that Petitioner fairly presented this claim to the state courts in a 13 procedurally appropriate manner, the claim is exhausted. However, the claim is nonetheless 14 procedurally defaulted because the Rule 32 court applied an express procedural bar when 15 it found that all of Petitioner’s claims, with the exception of his IAC claims, were precluded 16 as waived by Rule 32.2(a)(3) because they could have been raised earlier. (Ex. UU). 17 xiii. Ground Five (e) 18 Petitioner alleges that his due process rights were violated because the State failed 19 to disclose the entirety of Cheryl Laughlin’s 911 call. Petitioner did not raise this claim on 20 direct appeal. In the first PCR petition, Petitioner made general allegations that the State 21 had suppressed evidence and failed to complete discovery or produce evidence. (Ex. OO 22 at 57). In his second petition, Petitioner alleged a prosecutorial misconduct claim because 23 the State failed to disclose the tape or transcript of Laughlin’s 911 call. (Ex. QQ at 67). 24 Petitioner presented a similar claim in his petition for review to the COA, alleging 25 prosecutorial misconduct for failing to collect and test all available evidence, including the 26 911 call. (Ex. WW at 6). Petitioner presented these claims to the state courts as 27 prosecutorial misconduct claims but did not raise the specific claim he now presents on 28 habeas: an independent due process violation. The fact that Petitioner presented related - 38 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 39 of 78 1 prosecutorial misconduct claims to the state courts is immaterial to exhaust the separate 2 and distinct due process clause claim that Petitioner makes here. See Grey, 518 U.S. at 3 162–63; Tamalini, 249 F.3d at 898; Lopez, 491 F.3d at 1040; see also Rose v. Palmateer, 4 395 F.3d 1108, 1112 (9th Cir. 2005) (where petitioner only mentioned the unlawfulness of 5 his confession in support of his IAC claim on PCR, petitioner failed to fairly present Fifth 6 Amendment claim to the state courts for purposes of federal habeas exhaustion; “[w]hile 7 admittedly related, they are distinct claims with separate elements of proof, and each claim 8 should have been separately and specifically presented to the state courts.”). Accordingly, 9 Ground Five (e) is unexhausted because Petitioner failed to properly present it to the state 10 courts in a procedurally appropriate manner. See Baldwin, 541 U.S. at 29; Castillo, 399 11 F.3d at 998; Crowell, 483 F. Supp. at 931–33.41 12 C. Effect of Procedural Bar 13 Claims not previously presented to the state courts on either direct appeal or 14 collateral review are generally barred from federal review because any attempt to return to 15 state court to present them would be futile unless the claims fit into a narrow range of 16 exceptions. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on 17 direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) 18 (petition for review must be filed within thirty days of trial court’s decision). Because these 19 rules have been found to be consistently and regularly followed, and because they are 20 independent of federal law, either their specific application to a claim by an Arizona court, 21 or their operation to preclude a return to state court to exhaust a claim, will procedurally 22 bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. 23 Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931–32 (9th Cir. 1998) 24 (Rule 32 is strictly followed); State v. Mata, 916 P.2d 1035, 1050–52 (Ariz. 1996) (waiver 25 and preclusion rules strictly applied in post-conviction proceedings). 26 As explained above, several of Petitioner’s claims are unexhausted because 27 41 Even assuming that Petitioner did properly exhaust the claim, the claim is nonetheless procedurally defaulted because the Rule 32 court applied an express procedural bar when 28 it found that all of Petitioner’s claims, with the exception of his IAC claims, were precluded as waived by Rule 32.2(a)(3) because they could have been raised earlier. (Ex. UU). - 39 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 40 of 78 1 Petitioner failed to properly present them to the state courts in a procedurally appropriate 2 manner. Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent 3 Petitioner from now exhausting those claims in state court. Accordingly, the claims are 4 both technically exhausted and procedurally defaulted and thus not properly before this 5 Court for review. See Crowell, 483 F. Supp. 2d at 931–33; Coleman, 501 U.S. at 732, 735 6 n.1; Garcia, 2013 WL 4714370 at * 8. Additionally, some of Petitioner’s claims were 7 actually raised in state court and thus properly exhausted, but are nonetheless procedurally 8 barred from this Court’s review because the state court applied a plain procedural bar and 9 found the claims were precluded as waived by Rule 32.2(a)(3). See Coleman, 501 U.S. at 10 729–30. 11 A federal court may not consider the merits of a procedurally defaulted claim unless 12 the petitioner can demonstrate cause for his noncompliance and actual prejudice, or 13 establish that a miscarriage of justice would result from the lack of review. See Schlup v. 14 Delo, 513 U.S. 298, 321 (1995). Both cause and prejudice must be shown to excuse a 15 procedural default, but the Court is not required to examine the existence of prejudice if 16 the petitioner fails to establish cause. Engle, 456 U.S. at 134 n.43; Thomas, 945 F.2d at 17 1123 n.10. 18 i. Cause and Prejudice 19 In a memorandum attached to his PWHC, Petitioner provides several reasons that 20 he alleges constitute cause to excuse the procedural default of his claims. 21 First, Petitioner states that “the shock of this ordeal has not worn off” and has 22 affected his “mental process to decipher claims of facts from feelings and questions of law 23 from claims for relief, much less decipher the more complicated matters such as cause and 24 prejudice from grounds for relief.” (Doc. 7 at 160). In general, mental incompetence is 25 insufficient to establish cause because it is not a factor external to the defense. See 26 Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir. 2012) (“[A] pro se petitioner’s 27 mental condition cannot serve as cause for a procedural default, at least when the petitioner 28 on his own or with assistance remains ‘able to apply for post-conviction relief to a state - 40 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 41 of 78 1 court.’” (quoting Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986))); 2 see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner’s arguments 3 concerning his mental health and reliance upon jailhouse lawyers did not constitute cause). 4 Here, Petitioner has demonstrated an ability to file both state and federal petitions, and his 5 general allegation that shock from the ordeal has affected his mental processes is 6 insufficient to establish cause. See Schneider, 674 F.3d at 1154 (“a pro se petitioner might 7 demonstrate cause in a situation where a mental condition rendered the petitioner 8 completely unable to comply with a state’s procedures and he had no assistance”). 9 Second, Petitioner alleges that apparently everyone “missed the fact that there is no 10 motive to leave the scene of an accident because of a status in society (parole) when you 11 have life threatening injuries so great that you are [non-ambulatory],” and that the “mind 12 boggling complexities” of the constitutional issues related to this claim are such that it is 13 “unfathomable to require a layman to present this in a cognizable manner.” (Doc. 7 at 162, 14 164). Petitioner’s status as an inmate and lack of legal knowledge do not constitute cause. 15 See Lewis v. Casey, 518 U.S. 343, 355 (1996) (The right of access to the courts “does not 16 guarantee inmates the wherewithal to transform themselves into litigating engines capable 17 of filing everything from shareholder derivative actions to slip-and-fall claims. The tools 18 it requires to be provided are those that the inmates need in order to attack their sentences, 19 directly or collaterally, and in order to challenge the conditions of their confinement. 20 Impairment of any other litigating capacity is simply one of the incidental (and perfectly 21 constitutional) consequences of conviction and incarceration.”); see also Hughes, 800 F.2d 22 at 908 (petitioner’s pro se status and ignorance of the law do not satisfy the cause standard). 23 Further, while Petitioner alleges that “mind boggling complexities” make it 24 “unfathomable” to require him to present his claims in a cognizable manner, the record 25 reflects that Petitioner has been able to adequately articulate his claims to the courts. See 26 Thomas, 945 F.2d at 1123 (petitioner’s filing of pro se pleadings reflected adequate access 27 to and use of legal materials). Moreover, the argument that Petitioner alleges everyone 28 missed—that his motive for leaving the scene was his severe injuries, not his parole - 41 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 42 of 78 1 status—is precisely the argument defense counsel made at trial. 2 Third, Petitioner states that not one attorney assigned to his case has been able to 3 marshal the facts from the record, and with an eighth-grade education, he is unable to 4 present the truth. (Doc. 7 at 164–165). Petitioner’s lack of education is insufficient to 5 establish cause. See Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (that 6 “petitioner may possess below-average intelligence, have no formal legal training, or have 7 filed the initial habeas petition pro se” is not enough to excuse procedural default); see also 8 Hughes, 800 F.2d at 909 (petitioner’s alleged illiteracy insufficient to establish cause for 9 failure to timely appeal to state supreme court); Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 10 2004) (pro se status, ignorance of law and procedural requirements, limited access to prison 11 library, and unfamiliarity with the English language insufficient to establish cause); Harris 12 v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003) (borderline IQ is not external to the defense 13 and does not establish cause); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993) (pro se 14 petitioner and his deficiencies in reading and writing skills were not external factors 15 constituting “cause” for procedural default); Smith v. Newsome, 876 F.2d 1461, 1465 (11th 16 Cir. 1989) (low IQ did not mean petitioner was mentally incompetent or unable to raise 17 arguably valid claim; “being illiterate does not mean that the person lacks good sense[, n]or 18 does lack of formal education make a person mentally incompetent”). 19 Fourth, Petitioner claims that he is incapable of learning how to determine a viable 20 claim for relief because the prison library does not have access to law books that 21 demonstrate viable issues, and that the paralegal program has problems that render it 22 useless and futile to pursue—specifically, it would be too difficult to move all the 23 disclosure to the area to meet with the paralegal, and the inmates consider the program a 24 joke. (Doc. 7 at 165–166). “[A]n inmate cannot establish relevant actual injury simply by 25 establishing that his prison’s law library or legal assistance program is subpar in some 26 theoretical sense . . . ‘meaningful access to the courts is the touchstone,’ and the inmate 27 therefore must go one step further and demonstrate that the alleged shortcomings in the 28 library or legal assistance program hindered his efforts to pursue a legal claim.” Lewis, 518 - 42 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 43 of 78 1 U.S. 343 at 351 (internal citation omitted). Despite Petitioner’s protestations, the record 2 reveals that he has been able to adequately articulate his claims, and his pleadings are 3 replete with citations to case law and statutes, thus reflecting adequate access to and use of 4 legal materials. See Thomas, 945 F.2d at 1123 (despite complaints of inadequate law library 5 and legal assistance procedures, petitioner’s pleadings reflected knowledge of applicable 6 statutes, cases and court rules). Relatedly, Petitioner’s choice to not meet with the paralegal 7 because he thinks it would be useless or too difficult to do so does not constitute cause. 8 Fifth, Petitioner claims that it would make little sense to require him to present every 9 ground for relief on habeas that he presented to the state courts without first deciding his 10 claim of actual innocence, and that to require him to produce anything else not associated 11 with his claim of innocence would require him to address the complexities of the case 12 without access to certain law books. (Doc. 7 at 173). Again, Petitioner’s pleadings 13 demonstrate that he has been able to pursue his claims for relief in the state courts and 14 timely file his habeas petition in this Court, and his citations to case law and statutes reflect 15 adequate access to and use of legal materials. Petitioner’s assertion that it would make little 16 sense to present all claims until this Court addresses his claim of actual innocence does not 17 relieve Petitioner of the requirements of § 2254. Further, the issue of cause goes not to 18 what claims Petitioner presents in his PWHC, but is a means to excuse the procedural 19 default of his claims in state court and thereby lift the bar to federal habeas review of the 20 defaulted claims. 21 In his Reply to Respondents’ Answer, Petitioner presents additional arguments as 22 cause to excuse the procedural default of his claims. Petitioner first notes that the Answer 23 includes a list of proceedings that Respondents do not have transcripts for and contends 24 that this suggests government interference violating due process. (Doc. 17 at 2–3) (citing 25 Doc. 14 at 5). Petitioner alleges that withholding these documents in violation of Brady v. 26 Maryland, 373 U.S. 83 (1963), constitutes a per se excuse establishing cause and prejudice 27 for the procedural default of his claims.42 Id. at 2. While government concealment or 28 42 For procedural default purposes, “cause and prejudice parallel two of the three components of the alleged Brady violation itself.” Woods v. Sinclair, 764 F.3d 1109, 1130 - 43 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 44 of 78 1 suppression of evidence may establish cause for a petitioner’s failure to develop his claim 2 in state court, Banks v. Dretke, 540 U.S. 668, 691 (2004), Petitioner cannot argue “cause” 3 to excuse the default of his claims in state court simply because the answer filed in federal 4 court notes that Respondents do not have transcripts of certain proceedings. Relatedly, 5 Petitioner alleges that counsel was impeded from presenting issues to the state courts 6 because of the government interference in not providing the records from all proceedings. 7 (Doc. 17 at 3). Cause may be established if the state fails to provide transcripts or records 8 needed to fairly present a federal claim to the state courts and there were no reasonably 9 available alternative sources of information. See, e.g., Doorman v. Wainwright, 798 F.2d 10 1358, 1369–1370 (11th Cir. 1986); Forest v. Delo, 52 F.3d 716, 720–721 (8th Cir. 1995). 11 Here, however, Petitioner does not make any specific allegations as to what information 12 was supposedly withheld that prevented counsel from presenting claims to the state courts, 13 nor does Petitioner specify what those claims would have been. Petitioner’s generalized 14 allegations are hardly sufficient to explain his failure to properly exhaust his claims in state 15 court. 16 Petitioner further alleges that he had no control over the issues that appellate counsel 17 presented and that counsel rejected the list of issues Petitioner sent her. (Doc. 17 at 26). 18 Criminal defendants have a constitutional right to the effective assistance of counsel at trial 19 and for all direct appeals that the state grants as a matter of right. Evitts v. Lucey, 469 U.S. 20 387, 393 (1985). Thus, “[a]ttorney error that constitutes ineffective assistance of counsel 21 is cause [to excuse a procedural default].” Coleman, 501 U.S. at 753–754. However, “the 22 mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to 23 raise the claim despite recognizing it, does not constitute cause for a procedural default.” 24 Murray, 477 U.S. at 486; see also Coleman, 501 U.S. at 753 (“Attorney ignorance or 25 inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or 26 failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of 27 (9th Cir. 2014) (internal quotations and citations omitted). “A petitioner may establish cause by showing that the prosecution’s suppression of evidence was the reason for the 28 petitioner’s failure to develop the factual basis of the claim in state court.” Id. “Prejudice is established by showing that the suppressed evidence is material for Brady purposes.” Id. - 44 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 45 of 78 1 attorney error.’” (citation omitted)). For attorney error to constitute “cause,” it must rise to 2 the level of a constitutional violation of the right to counsel under Strickland. Murray, 477 3 U.S. at 488. Thus, whether the error occurs at trial or on appeal, “cause for a procedural 4 default . . . requires a showing of some external impediment preventing counsel from 5 constructing or raising the claim.” Id. at 492. 6 Here, appellate counsel reviewed the record to determine whether there were any 7 viable claims for appeal and chose to present one issue: whether it was reversible, 8 fundamental error for the trial court to admit evidence of Petitioner’s parole status without 9 giving a limiting instruction. Although Petitioner avers that he sent counsel a 13-page letter 10 of issues to pursue on appeal, an “attorney need not advance every argument, regardless of 11 merit, urged by the appellant.” Evitts, 469 U.S. at 394; see also Gustave v. United States, 12 627 F.2d 901, 904 (1980) (“Mere criticism of a tactic or strategy is not in itself sufficient 13 to support a charge of inadequate representation.”); Strickland, 466 U.S. at 690 (“[s]trategic 14 choices made after thorough investigation of law and facts relevant to plausible options are 15 virtually unchallengeable”); Sexton, 679 F.3d at 1157 (“Counsel is not necessarily 16 ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel 17 ineffective for failing to raise a claim that is meritless. Accordingly, a PCR counsel would 18 not be ineffective for failure to raise an ineffective assistance of counsel claim with respect 19 to trial counsel who was not constitutionally ineffective.” (internal citation omitted)). 20 Counsel is presumed to have acted reasonably, and appellate counsel likely evaluated the 21 merits of additional claims and made a tactical decision not to pursue them. As is discussed 22 further in Section D below, Petitioner has failed to show that appellate counsel was 23 constitutionally ineffective and thus any alleged error by appellate counsel cannot serve as 24 cause to excuse the procedural default of Petitioner’s claims. 25 Finally, Petitioner alleges that he did not receive a fair trial due to unjust grand jury 26 proceedings, an incomplete investigation, prosecutorial misconduct, ineffective assistance 27 of trial counsel, and a biased trial judge, therefore supporting cause and prejudice for the 28 procedural default of his claims. (Doc. 17 at 71). Petitioner appears to misunderstand the - 45 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 46 of 78 1 standard. A showing of cause and prejudice serves to excuse the procedural default of a 2 claim that is barred from federal habeas review. The cause must be some external factor 3 that prevented Petitioner from timely raising his federal claims to the state courts in a 4 procedurally appropriate matter, such as interference by officials that makes compliance 5 with the state’s procedural rule impracticable, a showing that the factual or legal basis for 6 the claim was not reasonably available, or that the procedural default was the result of 7 ineffective assistance of counsel. Murray, 477 U.S. at 488–489. Petitioner’s allegations of 8 an unfair trial go to the substance of his claims for relief but do not explain the why of 9 Petitioner’s failure to properly present his federal constitutional claims to the state courts. 10 In sum, none of Petitioner’s alleged reasons are sufficient to constitute cause 11 excusing the procedural default of his claims. While the standard for cause and prejudice 12 is one of discretion and is intended to be flexible, it must yield to exceptional circumstances 13 only. Hughes, 800 F.2d at 909. Petitioner bears the responsibility for failing to raise his 14 claims in a timely, properly filed state proceeding and properly exhausting those claims to 15 the Arizona COA. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Federal courts sitting 16 in habeas are not an alternative forum for trying facts and issues which a prisoner made 17 insufficient effort to pursue in state proceedings.”). Accordingly, because Petitioner has 18 failed to establish cause to excuse the procedural default of his claims, the Court need not 19 examine the merits of Petitioner’s defaulted claims or the purported prejudice. 20 ii. Fundamental Miscarriage of Justice 21 A federal court may review the merits of a procedurally defaulted habeas claim if 22 the petitioner demonstrates that failure to consider the merits of his claim will result in a 23 “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. A “fundamental miscarriage 24 of justice” occurs when a constitutional violation has probably resulted in the conviction 25 of one who is actually innocent. Id. This “exception is concerned with actual as compared 26 to legal innocence,” and is thus narrow in scope. Sawyer v. Whitley, 505 U.S. 333, 339–40 27 (1992). Actual innocence thereby serves as a “gateway” for a petitioner to have 28 procedurally or time-barred constitutional claims reviewed. McQuiggin v. Perkins, 569 - 46 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 47 of 78 1 U.S. 383, 386 (2013); Smith v. Baldwin, 510 F.3d 1127, 1139–49 (9th Cir. 2007) (en banc) 2 (A claim of innocence under Schlup is “not itself a constitutional claim, but instead a 3 gateway through which a habeas petitioner must pass to have his otherwise barred 4 constitutional claim considered on the merits.”). 5 To support a claim of actual innocence a petitioner must “support his allegations of 6 constitutional error with new reliable evidence—whether it be exculpatory scientific 7 evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not 8 presented at trial.” Schlup, 513 U.S. at 324. “Given the rarity of such evidence, ‘in virtually 9 every case, the allegation of actual innocence has been summarily rejected.’” Calderon v. 10 Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). Thus, the 11 “precedents holding that a habeas petitioner satisfied [the Schlup standard] have typically 12 involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1095–96 13 (9th Cir. 2013). 14 In order to pass through the Schlup gateway, a petitioner’s case must be “truly 15 extraordinary,” 513 U.S. at 327, and a “tenable actual-innocence gateway” claim will not 16 be found unless the petitioner “persuades the district court that, in light of the new evidence, 17 no juror, acting reasonably, would have voted to find him guilty beyond a reasonable 18 doubt.” McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 329). A showing that a 19 reasonable doubt exists in light of the new evidence is not sufficient; rather, the “petitioner 20 must show that it is more likely than not that no reasonable juror would have found 21 petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S at 327; see also Lorentsen 22 v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (“Petitioner bears the burden of proof on this 23 issue by a preponderance of the evidence, and he must show not just that the evidence 24 against him was weak, but that it was so weak that ‘no reasonable juror’ would have 25 convicted him.”). 26 Here, Petitioner alleges that the evidence of his actual innocence is so strong that it 27 is enough to demonstrate a fundamental miscarriage of justice occurred, violating nearly 28 every constitutional right at every stage of the proceedings. (Doc. 7 at 172). Petitioner - 47 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 48 of 78 1 specifically contends that, based on Kendrick John’s interview, the facts underlying his 2 claims for relief are sufficient to establish by clear and convincing evidence that, but for 3 the constitutional violations in his case, no reasonable fact finder would have found 4 Petitioner guilty. (Doc. 17 at 14). However, as discussed above in Section A(i), the 5 statements Petitioner relies on in John’s interview do not establish who was driving the 6 truck at the time of the fatal collision.43 John made several vague and inconsistent 7 statements that Medina left in the truck, that John woke up and Medina was gone and the 8 truck was gone, and that John didn’t want his friend to get in trouble for drinking and 9 driving. See Doc. 7-1 Ex. I. While John’s statements may have cast some doubt on the 10 State’s theory of the case, John’s interview does not prove that Medina was the driver at 11 the time of the fatal accident, or that Petitioner was not the driver at the time of the fatal 12 accident. Although a Schlup gateway claim does not require affirmative proof of 13 innocence, a petitioner cannot merely attempt to discredit the state’s case and must 14 affirmatively present new, exculpatory evidence. Sistrunk v. Armenakis, 292 F.3d 669, 673, 15 676 (9th Cir. 2002); Larsen, 742 F.3d at 1095–96 (“[E]vidence [that] casts doubt on the 16 conviction by undercutting the reliability of the proof of guilt, but not by affirmatively 17 proving innocence, . . . can be enough to pass through the Schlup gateway . . . [; however, 18 the court has] denied access to the Schlup gateway where a petitioner’s evidence of 19 innocence was merely cumulative or speculative or was insufficient to overcome otherwise 20 convincing proof of guilt.”). Here, even if the jury had been presented with John’s 21 interview statements, the undersigned cannot say that John’s statements constitute 22 evidence of innocence so strong as to undermine confidence in the proof of Petitioner’s 23 guilt. Rather, the jury would still have been likely to convict based on the totality of the 24 evidence presented at trial, such as the DNA evidence implicating Petitioner as the driver 25 26 27 43 Furthermore, as discussed in Section D(iii) below, John gave several contradictory 28 statements across several interviews, was not forthcoming with information, and claimed inability to remember much of what happened. - 48 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 49 of 78 1 of the truck44 and eyewitness testimony45 that placed Petitioner and his wife at the scene of 2 the fatal accident. Thus, the undersigned cannot say that, had John’s interview statements 3 been disclosed to the jury, and in light of the other evidence at trial, that no reasonable juror 4 would have voted to convicted Petitioner. Compare Larsen, 742 F.3d at 1096 (Schlup 5 gateway satisfied where petitioner produced five witnesses who were not called at trial and 6 who gave credible testimony that someone other than petitioner committed the acts for 7 which he was convicted and sentenced), with Griffin v. Johnson, 350 F.3d 956, 965 (9th 8 Cir. 2003) (petitioner’s newly submitted psychological report insufficient to establish 9 actual innocence where it was highly unlikely the jury would have reached a different result 10 based on the report in light of other conflicting psychiatric evidence), Albrecht v. Horn, 11 485 F.3d 103, 125 (3d Cir. 2007) (actual innocence standard not satisfied where “[t]he 12 substantial remainder of the Commonwealth’s case has not been discredited and provides 13 ample evidence of guilt[,]” despite defense expert and lay witness testimony that 14 contradicted prosecution’s theory of the case), Moore-El v. Luebbers, 446 F.3d 890, 903 15 (8th Cir. 2006) (actual innocence standard not satisfied where, at most, testimony of 16 possible eyewitness “would have established conflicting testimony among purported 17 eyewitnesses to the murder, a circumstance that already existed”), and Johnson v. Norris, 18 170 F.3d 816, 819 (8th Cir. 1999) (actual innocence standard not satisfied where much of 19 the evidence petitioner relied on, including a witness’s memory loss and potentially 20 conflicting testimony of witnesses, was “not new and reliable”). 21 44 Petitioner’s blood was found on the truck’s driver’s side door, driver’s side headrest, center console, and deployed driver’s side airbag. (Ex. O at 576:25–577:1, 581:13–20). 22 Detective LaBenz testified that the bloodstain on the airbag could have only been deposited after the collision when the airbag deployed. (Ex. P at 692:20–22). He further stated that 23 there was no evidence of blood in the backseat. Id. at 695:5–16. 45 Karin Copeland testified that she called 911 to report the car accident. (Ex. M at 324– 24 25). The pickup truck was in her front yard and she saw two people right in front of the truck leaving. Id. at 328–29. Right on the other side, she saw a white car with the back- 25 passenger door open. Id. at 329. Karin asked the people if they were ok, but the woman did not respond. Id. at 329; 337. Karin saw the woman get the man to the back-passenger door 26 and then the woman went to the driver’s side and was yelling “get in.” Id. at 330. Karin was reading the license plate to the 911 operator when the car drove away with the back 27 door still open. Id. The driver turned on the right blinker, then turned off the lights and turned left. Id. at 331. Karin didn’t get a good look at the people, but the woman was blond 28 and shorter than the man. Id. at 336. The man seemed to be in great pain and like he was confused about how to get into the car. Id. at 336–38. - 49 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 50 of 78 1 In sum, while Petitioner challenges the constitutional adequacy of the procedures 2 that led to his convictions and sentences and the fairness of those proceedings, he does not 3 point to the kind of new evidence contemplated by the Supreme Court such as “exculpatory 4 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” 5 Schlup, 513 U.S. at 324. Thus, the undersigned finds that Petitioner has not offered any 6 new reliable evidence of actual innocence sufficient to establish that it is more likely than 7 not that no reasonable juror would have found him guilty beyond a reasonable doubt. 8 Accordingly, Petitioner has not shown that review of his procedurally-barred claims is 9 warranted under Schlup. 10 D. Merits 11 Petitioner’s remaining claims allege ineffective assistance of trial counsel and 12 appellate counsel. 13 i. Legal Standard 14 The Supreme Court established a two-part test for evaluating IAC claims in 15 Strickland v. Washington, 466 U.S. 668 (1984). To establish that counsel was ineffective 16 under Strickland, Petitioner must show: (1) that trial counsel’s performance was deficient; 17 and (2) that trial counsel’s deficient performance prejudiced Petitioner’s defense. Ortiz v. 18 Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (citing Strickland, 466 U.S. at 688, 694). To 19 establish deficient performance, Petitioner must show that “counsel made errors so serious 20 . . . that counsel’s representation fell below an objective standard of reasonableness . . . 21 under prevailing professional norms.” Strickland, 466 U.S. at 687–688. The relevant 22 inquiry is not what defense counsel could have done, but rather whether the decisions made 23 by defense counsel were reasonable. Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 24 1998). In considering this factor, counsel is strongly presumed to have rendered adequate 25 assistance and made all significant decisions in the exercise of reasonable professional 26 judgment. Strickland, 466 U.S. at 690. 27 The Ninth Circuit “h[as] explained that ‘[r]eview of counsel’s performance is highly 28 deferential and there is a strong presumption that counsel’s conduct fell within the wide - 50 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 51 of 78 1 range of reasonable representation.’” Ortiz, 149 F.3d at 932 (quoting Hensley v. Crist, 67 2 F.3d 181, 184 (9th Cir. 1995)). “The reasonableness of counsel’s performance is to be 3 evaluated from counsel’s perspective at the time of the alleged error and in light of all the 4 circumstances[.]” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Additionally, “[a] 5 fair assessment of attorney performance requires that every effort be made to eliminate the 6 distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged 7 conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 8 466 U.S. at 689. Acts or omissions that “might be considered sound trial strategy” do not 9 constitute ineffective assistance. Id. 10 Even where trial counsel’s performance is deficient, Petitioner must also establish 11 prejudice in order to prevail on an IAC claim. To establish prejudice, Petitioner “must show 12 that there is a reasonable probability that, but for counsel’s unprofessional errors, the result 13 of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable 14 probability is a probability sufficient to undermine confidence in the outcome.” Id. Under 15 the prejudice factor, “[a]n error by counsel, even if professionally unreasonable, does not 16 warrant setting aside the judgment of a criminal proceeding if the error had no effect on 17 the judgment.” Id. at 691. “The likelihood of a different result must be substantial, not just 18 conceivable.” Richter, 562 U.S. at 112. Further, because failure to make the required 19 showing of either deficient performance or prejudice defeats the claim, the court need not 20 address both factors where one is lacking. Strickland, 466 U.S. at 697–700; LaGrand v. 21 Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and 22 prejudice if the petitioner cannot establish one or the other). 23 Additionally, under the AEDPA, the federal court’s review of the state court’s 24 decision on an IAC claim is subject to another level of deference. Bell v. Cone, 535 U.S. 25 685, 698–699 (2002). This creates a “doubly deferential” review standard in which a 26 habeas petitioner must show not only that there was a violation of Strickland, but also that 27 the state court’s resolution of the claim was more than wrong, it was an objectively 28 unreasonable application of Strickland. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); - 51 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 52 of 78 1 Bell, 535 U.S. at 698–99; Woodford, 537 U.S. at 25; Cullen v. Pinholster, 563 U.S. 170, 2 171 (2011) (federal habeas court’s review of state court’s decision on ineffective assistance 3 of counsel claim is “doubly deferential”). Thus, “[t]he pivotal question is whether the state 4 court’s application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 105. 5 Finally, where the state court decides the merits of a claim without providing its 6 rationale, the federal court independently reviews the record to assess whether the state 7 court decision was objectively unreasonable under controlling federal law. See Himes v. 8 Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th 9 Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 981–82 (9th Cir. 2000) (“Federal habeas 10 review is not de novo when the state court does not supply reasoning for its decision, but 11 an independent review of the record is required to determine whether the state court clearly 12 erred in its application of controlling federal law.”). Although the record is reviewed 13 independently, the federal court nevertheless defers to the state court’s ultimate decision. 14 Pirtle, 313 F.3d at 1167; see also Himes, 336 F.3d at 853. 15 ii. Ground Two (a) 16 Petitioner alleges that trial counsel was ineffective for failing to secure Cheryl 17 Laughlin as a witness or object to her absence at trial, and failing to request that she appear 18 telephonically. As explained above, with the exception of the telephonic appearance 19 portion of the claim, this claim is properly exhausted and will be reviewed on the merits. 20 In denying Petitioner’s Rule 32 petition, the trial court broadly categorized all of 21 Petitioner’s claims as either IAC or prosecutorial misconduct but did not address each 22 specific argument that Petitioner presented. As to the IAC claims, the court found that 23 Petitioner failed to state any colorable claims for relief under Strickland because Petitioner 24 failed to show that counsel’s performance was deficient or that the alleged deficiencies 25 prejudiced him. (Ex. UU at 173–174). The court stated that there was a strong presumption 26 that counsel’s actions fell within the broad range of reasonable conduct and that Petitioner 27 failed to demonstrate that counsel’s actions fell outside of this range or were otherwise 28 deficient. Id. at 174. The court also found that Petitioner failed to show prejudice, stating - 52 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 53 of 78 1 that the “petition nowhere establishes that, had counsel done any or all of the things 2 Defendant says should have been done, that the outcome would have been any different.” 3 Id. The court further commented that “given Defendant’s theory of the case—that he 4 confronted two intoxicated individuals who attempted to carjack his wife’s car and yet 5 somehow he ended up being driven from the scene by one of the carjackers in the 6 carjackers’ truck—showing prejudice is virtually impossible.” Id. 7 In denying relief on Petitioner’s petition for review, the Arizona COA did not 8 specifically address Petitioner’s IAC claims, but stated that it had “reviewed the record in 9 this matter, the superior court’s order denying the petition for post-conviction relief, and 10 the petition for review[,]” and found that Petitioner had “not established an abuse of 11 discretion.” (Ex. DDD at 25).46 12 For purposes of federal habeas review, Petitioner bears the burden of showing that 13 the PCR court, in ruling that trial counsel was not ineffective, applied Strickland in an 14 objectively unreasonable manner. In making this determination, “the question is not 15 whether counsel’s actions were reasonable,” but “whether there is any reasonable argument 16 that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. Here, the 17 state court’s finding that Petitioner’s claim that trial counsel was ineffective for failing to 18 secure Laughlin as a witness or object to her absence was without merit is supported by the 19 record before this Court and was not an unreasonable application of Strickland. 20 “[C]omplaints of uncalled witnesses are not favored in federal habeas corpus review 21 because allegations of what the witness would have testified are largely speculative.” Evans 22 v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). A petitioner may not use self-serving 23 speculation to argue that a witness might have provided favorable testimony, but must 24 46 “AEDPA directs federal courts to train their attention on the particular reasons why each state court that considered a prisoner’s claims denied relief. When more than one state court 25 has adjudicated a claim, the federal court analyzes the last ‘reasoned’ state court decision.” Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016) (quoting 26 Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005)). However, where “the last reasoned decision adopted or substantially incorporated the reasoning from a previous 27 decision . . . it [is] reasonable for the reviewing court to look at both decisions to fully ascertain the reasoning of the last decision.” Barker, 423 F.3d at 1093; see also Robinson, 28 360 F.3d at 1055 (in evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision). - 53 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 54 of 78 1 adduce evidence to show what the witness’s testimony would have been. Grisby v. 2 Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); see also United States v. Ashimi, 932 F.2d 3 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must 4 generally be presented in the form of actual testimony by the witness or on affidavit. A 5 defendant cannot simply state that the testimony would have been favorable; self-serving 6 speculation will not sustain an ineffective assistance claim.”). Further, a “difference of 7 opinion as to trial tactics . . . alone generally does not constitute a denial of effective 8 assistance of counsel.” U.S. v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981); see also Gustave 9 v. U.S., 627 F.2d 901, 904 (1980) (“Mere criticism of a tactic or strategy is not in itself 10 sufficient to support a charge of inadequate representation.”); Strickland, 466 U.S. at 689 11 (acts or omissions that “might be considered sound trial strategy” do not constitute 12 ineffective assistance of counsel). 13 Here, Petitioner’s argument is that counsel should have done more to ensure Cheryl 14 Laughlin was available to testify at trial. The record reflects that Laughlin was scheduled 15 to be called as a witness for the State (Ex. J at 155: 23) and the prosecutor referred to her 16 anticipated testimony during opening statements (Ex. M at 300:20–301:5). However, on 17 the third day of trial, the prosecutor informed the court that he had received a message from 18 Laughlin’s husband/boyfriend that he had rushed her to the ER the day before and she 19 would not be able to testify. (Ex. N at 408:17–23). The court asked if defense counsel 20 wanted to be heard on that issue, and counsel replied “No . . . there may be nothing we can 21 do.” Id. at 409:2–6. Counsel then said, “I don’t know if Mr. Serden wants to keep it open 22 a couple days.” Id. at 409:6–7. The prosecutor explained that based on the information he 23 had, it was “not going to be a couple of days,” and Laughlin would not be available for 24 trial. Id. at 409:8–10. The court then granted the State’s request—with no objection from 25 defense counsel—that the jury be informed that Laughlin was no longer available to testify 26 due to a medical emergency. Id. at 409:10–14, 410:9–15. 27 When defense counsel learned that Laughlin was not available, he had to make a 28 strategic decision based on the information that he had about whether to object to the trial - 54 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 55 of 78 1 proceeding without Laughlin. Given that trial had already begun, and it was unclear how 2 long Laughlin would be unavailable for, it was reasonable for counsel to determine that 3 there didn’t appear to be anything that he or the prosecutor could do about Laughlin’s 4 absence. Laughlin was a witness for the State, and counsel may have also reasoned that 5 Laughlin’s testimony would not be helpful to the defense. Even if counsel had objected to 6 Laughlin’s absence and requested some remedy, there is no guarantee that the trial court 7 would have granted such a request. Thus, the undersigned finds that trial counsel’s decision 8 not to object to Laughlin’s absence or make other efforts to secure her as a witness “falls 9 within the wide range of reasonable professional conduct.” Strickland, 466 U.S. at 689. 10 Further, any allegations of what Laughlin might have said if she had testified are 11 pure speculation, and Petitioner has provided no affidavit or other evidence to show that 12 Laughlin’s testimony would have been favorable to the defense. Given that Laughlin was 13 the State’s witness, it is unlikely that her testimony would have bolstered the defense theory 14 at trial. During opening statements, the prosecutor stated that Laughlin called 911 to report 15 that there were two intoxicated men in the road, one injured, and that she saw a white car, 16 possibly a Lincoln, at the scene, but the car left before she could get the license plate. (Ex. 17 M at 300:20–301:5). Detective LaBenz interviewed Laughlin and wrote a summary of her 18 statement:47 19 Cheryl said she and Jeffery Steiner had just left their place at 9321 East Pueblo Avenue in her car and were driving east on 20 47 Federal court “review under § 2254(d)(1) is limited to the record that was before the state 21 court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181; see also Murray v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014) (“Along with the significant 22 deference AEDPA requires us to afford state courts’ decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our 23 responsibilities under § 2254(d)(1).”). It is unclear what documents Petitioner may have included with his state court filings that the state courts would have considered in ruling 24 on the merits of Petitioner’s claims. While the undersigned does not propose to expand the record on habeas review, the undersigned cites to the documents Petitioner included with 25 his PWHC to provide relevant background information supporting the undersigned’s conclusion that the state court’s finding that Petitioner’s IAC claims were without merit 26 was not an objectively unreasonable application of Strickland. See Rule 7, Rules Governing § 2254 Cases (if a PWHC is not dismissed, “the judge may direct the parties to expand the 27 record by submitting additional materials relating to the petition”); see also Jamerson v. Runnels, 713 F.3d 1218, 1226–27 (9th Cir. 2013) (in considering Batson claim, Pinholster 28 does not bar court from considering reconstructed evidence of jury venire that was actually presented to the state court). - 55 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 56 of 78 1 Pueblo Avenue. She said the red car was now registered to her current boyfriend . . . 2 As they approached the intersection with 96th Street she saw a 3 white vehicle pull away from the east side of the intersection heading westbound and there were two bodies lying in the 4 roadway. She said both the front and rear driver’s side doors were open on the vehicle, then they both closed and the vehicle 5 drove away. She thought there were two people who got in the car, but was not sure. She saw the car turn and go north on 96th 6 Street. 7 Cheryl made Jeffery stop the car so she could help the people in the road. She indicated that Jeffery did not want to get 8 involved because he was on probation and did not want to get in trouble or have Law Enforcement contact. 9 There were two Native American men lying in the road. Both 10 appeared to be hurt. She helped them out of the road and then called 911, but did not know the time of the call. After calling 11 for help, she remained on the scene until emergency responders arrived. She spoke with a deputy and then left.48 12 13 (Doc. 7-1 at 19–20). LaBenz also noted that he “asked Cheryl if she saw a pick-up truck or 14 any other vehicles in the area. She said the only vehicle she saw was the car.” Id. at 20. 15 Laughlin did not see the fatal accident, did not see Medina’s truck, and did not see anyone 16 driving the truck. She saw a white car drive away but was not sure if she saw one or two 17 people get in the car. There is little—if anything—this information does to bolster 18 Petitioner’s defense. Rather, Laughlin’s statements that she saw a white car drive away and 19 “two Native American men” injured and lying in the road support the State’s theory that 20 Medina and John stayed at the fight scene, Shirley Chavez left in the Lincoln, and Petitioner 21 took off in Medina’s truck and caused the fatal accident.49 Thus, even if Laughlin had 22 testified, Laughlin’s testimony would not have been favorable to the defense. Petitioner 23 fails to advance any credible argument to persuade the Court otherwise. 24 Therefore, while the Court is not required to consider prejudice because Petitioner 25 48 Deputy Antwiler’s report documents that he spoke with a female at 96th and Pueblo. (Doc. 7-1 at 36). When Antwiler arrived at the scene he saw two men and a woman in the 26 middle of the street. The men identified themselves with their Arizona identification cards as Medina and John. Antwiler spoke with the woman and asked her what happened. She 27 said she was driving by, heard yelling and screaming, saw the two men, and stopped to help. She did not remain on the scene long enough to be identified. 28 49 Detective LaBenz also spoke with Jeffrey Steiner, whose statement mirrors Cheryl Laughlin’s. See Doc. 7-1 at 22–23. - 56 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 57 of 78 1 has failed to show that counsel’s performance was deficient, the undersigned further finds 2 that Petitioner has not shown a reasonable probability that Laughlin’s testimony would 3 have probably changed the verdict. The undersigned has thoroughly reviewed the record, 4 including the transcripts from Petitioner’s trial, and it contains ample evidence to support 5 the jury’s verdicts. Petitioner cannot show a substantial likelihood that the result would 6 have been different had Laughlin testified at trial. 7 Accordingly, the state court’s finding that Petitioner’s IAC claim was without merit 8 is supported by the record before this Court and was not an objectively unreasonable 9 application of Strickland. The undersigned therefore recommends that the District Court 10 deny relief on Ground Two (a). 11 iii. Ground Two (c) 12 Petitioner alleges that trial counsel was ineffective for failing to object to Kendrick 13 John’s absence at trial and allowing the trial to proceed without him as a witness, and 14 counsel did not move the State to bring John to justice on his active warrants. In the second 15 PCR petition, Petitioner did not raise a specific claim regarding John in his list of claims 16 for relief based on trial counsel’s alleged ineffectiveness. See Ex. QQ at 69–70. However, 17 in the argument section of his petition, Petitioner addressed trial counsel’s and appellate 18 counsel’s alleged deficiencies and specifically alleged that trial counsel should have moved 19 the State to bring John to justice for the active warrants he had at the time of Petitioner’s 20 trial. Id. at 89–90. In his petition for review to the COA, Petitioner then made the specific 21 claim that trial counsel was ineffective for failing to investigate and object to John’s 22 absence at trial. (Ex. WW at 7). Thus, construing Petitioner’s pleadings liberally, Petitioner 23 has properly exhausted the claim he now makes in Ground Two (c). 24 As noted above, the trial court found that Petitioner failed to state any colorable 25 claims for relief under Strickland because Petitioner failed to show that counsel’s 26 performance was deficient or that the alleged deficiency prejudiced him. (Ex. UU at 173– 27 74). In denying relief on Petitioner’s petition for review, the Arizona COA did not 28 specifically address Petitioner’s IAC claims, but found that Petitioner had failed to - 57 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 58 of 78 1 establish that the trial court abused its discretion in denying the Rule 32 petition. (Ex. DDD 2 at 25). For purposes of federal habeas review, Petitioner bears the burden of showing that 3 the state court, in ruling that trial counsel was not ineffective, applied Strickland in an 4 objectively unreasonable manner. Here, the undersigned concludes that the state court’s 5 finding that trial counsel was not ineffective for failing to secure John as a witness or object 6 to his absence is supported by the record before this Court and was not an unreasonable 7 application of Strickland. 8 When reviewing a claim of IAC, this Court “begin[s] with the premise that under 9 the circumstances, the challenged action [] might be considered sound trial strategy . . . 10 [and w]e affirmatively entertain the range of possible reasons . . . counsel may have had 11 for proceeding as they did.” Elmore v. Sinclair, 799 F.3d 1238, 1248–49 (9th Cir. 2015) 12 (second and fifth alterations in original) (internal quotations and citations omitted). “As 13 long as defense counsel uses a sound trial strategy, employing that strategy does not 14 constitute deficient performance.” Elmore, 799 F.3d at 1250 (internal quotations and 15 citation omitted). Further, “[no decision of the Supreme Court] suggests . . . that the 16 indigent defendant has a constitutional right to compel appointed counsel to press 17 nonfrivolous points requested by the client, if counsel, as a matter of professional 18 judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). 19 To require otherwise would “seriously undermine[] the ability of counsel to present the 20 client’s case in accord with counsel’s professional evaluation.” Id. 21 Here, Petitioner alleges that trial counsel was ineffective for failing to secure John 22 as a witness for trial and not objecting to John’s absence. Petitioner further alleges that 23 counsel should have compelled the State to secure John’s appearance by detaining John on 24 his outstanding warrants. The record reflects that John was listed as a potential witness in 25 the State’s Notice of Discovery. (Ex. B at 12). During opening statements at trial, 26 Petitioner’s counsel told the jury John was possibly a witness to what happened at the fight 27 scene after Ms. Chavez left, but that John was not available because he had outstanding 28 warrants and was hiding out on the reservation. (Ex. M at 316:3–8). Later during trial, - 58 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 59 of 78 1 counsel told the court that the State had tried to locate John but that he was on a reservation 2 somewhere—they weren’t sure which one—“in a place where we can’t touch him.” (Ex. 3 O at 550:14–25). Thus, this is not a case where the witness’s absence was a surprise— 4 Petitioner’s counsel knew John was not going to be available to testify because John was 5 hiding out on an Indian reservation where they were unable to find him. Petitioner offers 6 no argument as to what else trial counsel or the State could have done to locate John and 7 secure his appearance.50 Petitioner’s general allegations that John should have been 8 subpoenaed, that neither trial counsel nor the prosecutor made any effort to secure John’s 9 appearance, and that trial counsel’s failure to object to John’s absence was clearly not in 10 Petitioner’s interest fall far from the threshold required to show deficient performance 11 under Strickland. (Doc. 17 at 29–30, 56). “The proper measure of attorney performance 12 remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. 13 at 688. As the Ninth Circuit has artfully explained: “The test has nothing to do with what 14 the best lawyers would have done. Nor is the test even what most good lawyers would have 15 done. We ask only whether some reasonable lawyer at the trial could have acted, in the 16 circumstances, as defense counsel acted at trial.” Coleman v. Calderon, 150 F.3d 1105, 17 1113 (9th Cir.), rev’d on other grounds, 525 U.S. 141 (1998). 18 Further, Petitioner’s counsel fought to have John’s statements admitted through the 19 50 The method for compelling attendance at trial is to serve the witness with a subpoena. A.R.S. § 13-4071(A); Ariz. R. Crim. P. 34(a). However, even if John had been found, it is 20 not clear that the trial court would have been able to secure his attendance at trial. See Tracy v. Superior Court of Maricopa Cty., 168 Ariz. 23, 37 (1991) (“Arizona courts lack 21 jurisdiction to compel a Navajo witness located on the Navajo reservation to testify in a state court criminal proceeding without resort to the provisions of the Uniform Act. The 22 Uniform Act is only operative where the other jurisdiction has enacted reciprocal legislation, as the Navajo Nation has done here.”); see also Maguire v. United States, 396 23 F.2d 327, 330 (9th Cir. 1968) (“The Sixth Amendment does not require that the government be successful in trying to subpoena witnesses— all that is required is that the process issue 24 and the Marshal exercise due diligence in a good faith attempt to secure service of the process.”). 25 The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, A.R.S. §§ 13-4091 to 13-4096, “is a provision to assist jurisdictions 26 in conducting criminal prosecutions.” Tracy, 168 Ariz. 23 at 37. “Either the prosecutor or the defendant may utilize the Uniform Act to procure the attendance of [] a witness . . . 27 who resides beyond the subpoena power of the prosecuting state.” Id. “[T]he Uniform Act does not extend the criminal jurisdiction of the requesting jurisdiction beyond its 28 boundaries; rather, the Act’s effectiveness depends on principles of comity and reciprocity in the courts of the jurisdiction where the witness resides.” Id. - 59 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 60 of 78 1 testimony of the witness police officers but was denied by the trial judge. During opening 2 statements, counsel started to say that John spoke to Detective LaBenz, but the State 3 objected and the court ruled that counsel could not mention John’s statements in his 4 opening because it was unclear whether the statements were going to come in at trial. (Ex. 5 M at 316–18). Later in trial, the court gave counsel an opportunity to address hearsay 6 issues. Petitioner’s counsel told the court that during the interview with Detective LaBenz, 7 “KJ repeatedly said that he saw Mr. Medina driving away from the scene.” (Ex. O at 550:4– 8 5). Counsel clarified that John first said he was knocked out and when he woke up Medina 9 and the truck were gone, then later said Medina was driving. Id. at 552:15–18. John just 10 said Medina was driving; he did not say from the scene. Id. at 553:1–2. Counsel noted that 11 John later retracted the statement that Medina was driving and said he didn’t remember 12 making it, saying “you made me rat my friend out.” Id. at 550:7–9. Counsel also noted that 13 John was extremely drunk and combative at the time. Id. at 550:9–10. Counsel argued that 14 because John was not available and reasonable efforts had been made to locate him, John’s 15 statements to Detective LaBenz should come in as an exception to the hearsay rule because 16 they were “potentially material evidence” that Petitioner was not the driver at the time of 17 the accident and therefore went to “the heart of the case.” Id. at 550–53. The court 18 ultimately ruled that John’s statements could not come in just because he was unavailable, 19 but that Petitioner’s counsel might be able to use the statements if he could lay the 20 foundation for an excited utterance or other hearsay exception. Id. at 564:13–565:5. Thus, 21 in contrast to Petitioner’s complaints that counsel did not act with Petitioner’s interests in 22 mind, the record reflects that counsel argued persistently to have John’s statements come 23 in via officer testimony as an exception to the hearsay rule. Counsel was therefore not 24 ineffective for failing to secure John’s presence at trial when he argued to have John’s 25 statements admitted; the statements, to the extent that they had value for the defense, would 26 have likely been more valuable than John’s testimony years after the incident (considering 27 that John was unable to recall what happened just a few months after the incident). 28 In addition, while Petitioner alleges that John would have testified “to his direct - 60 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 61 of 78 1 involvement and first hand knowledge to the events leading up to and throughout the fatal 2 accident,” Petitioner provides no evidence as to what John’s testimony would have been or 3 whether it would have been favorable to the defense. (Doc. 7 at 9); see Grisby, 130 F.3d at 4 373; Ashimi, 932 F.2d at 650. A review of the police reports Petitioner attaches to his 5 PWHC confirms that John made inconsistent statements about what happened the night of 6 the incident and what he remembered, and thus it is anyone’s guess as to what John would 7 have actually said on the witness stand. The police reports show the following: 8 On the night of the incident, Deputy Antwiler was dispatched to 96th and Pueblo 9 and saw two men and a woman in the middle of the street. (Doc. 7-1 at 36). The men 10 identified themselves with their Arizona identification cards as Medina and John. Both men 11 were very intoxicated with slurred speech, stumbled while speaking, and easily lost their 12 train of thought. John said they did not need the police and that Medina was not that badly 13 hurt. John said he did not know how Medina got injured and that he walked up on him in 14 that condition. John and Medina were anxious, agitated, and aggressive and were arrested 15 for disorderly conduct. Antwiler noted that John and Medina were found about a half mile 16 away from the fatal collision. Deputy Macklin was also on scene with Deputy Antwiler 17 and noted that Medina and John appeared to be intoxicated and that John did not appear to 18 be injured. (Doc. 7-1 at 39). Macklin and Antwiler tried to get information from Medina 19 and John but they were evasive and would not answer questions. 20 Detective LaBenz interviewed John at the scene after he was placed in the cop car. 21 (Doc. 7-1 at 42). John repeatedly stated that he didn’t do anything and that he was trying 22 to help his friend. He described getting into some kind of fight at the bowling alley earlier 23 that night, then went to the bar, and then “I guess I left with a friend his name is Darrin 24 he’s fucked up though.” Id. at 58:21. John clarified that he meant they were both drinking, 25 and that when the cops got John someone let Medina go, and Medina went home. Id. at 59. 26 When asked if they got pulled over or if anything happened, John said nothing happened 27 and they were not pulled over. Id. at 60. He did not want Medina to take the blame for 28 drinking and driving. John said Medina “took the truck and left” and John stayed. Id. at - 61 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 62 of 78 1 61:14–17. John further said “a bunch of shit” happened that he didn’t know how to explain, 2 that he had been drinking and was trying to protect his friends, and that he stayed to take 3 the blame for something. Id. at 62–63. John clarified that he meant the drinking and driving, 4 and that Medina took off and John stayed. Id. at 64:8–11. John repeatedly denied knowing 5 anything about an accident and said Medina was not hurt. Id. at 65–66. In his narrative 6 report, LaBenz noted that John was “vague and argumentative through parts of the 7 investigation, but seemed forthcoming during other parts” and “had conflicting 8 statements.” (Doc. 7-1 at 88). LaBenz provided a summary of John’s record statements: 9 John told me he had been bowling earlier in the night and witnessed a guy getting “jumped”. He gave chase to the guys 10 that “jumped” the other guy, but lost him in a neighborhood. 11 He then told me about going to Spirits Bar with Darrin and some other people. He got a ride home from Darrin. He had a 12 trouble recollecting what took place during the ride home. He stated that he stayed around to take the fall for something that 13 happened. He said Darrin left in his truck. 14 John made statements about blacking out, and other statements about taking responsibility for Darrin so he would not get in 15 trouble. He repeatedly stated that he did not have any recollection of the events leading to the collision or why 16 someone other than Darrin would be driving Darrin’s truck. John had nothing further to add. 17 18 (Doc. 7-1 at 88). 19 Detective Luna interviewed John approximately three months after the incident. 20 John stated that he remembered some of that night but not the end of it. (Doc. 7-1 at 31). 21 John said Medina was driving them home from the bar and that a red car cut them off. Id. 22 at 32. Medina and the driver of the red car got out and were fighting. John got out to see 23 what was going on, was hit from behind with something, and fell to the ground and lost 24 consciousness. When he woke up everyone was gone and the truck was gone. John started 25 to walk home and came across the accident scene and saw Medina’s truck was involved. 26 He tried to get information from the deputies because he was worried about his friend but 27 ended up getting arrested. John could not identify the driver of the red car and could not 28 provide any additional information. He showed Detective Luna a scar on his back from - 62 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 63 of 78 1 where he said he was hit. 2 Thus, while Petitioner alleges that John would have testified to his first-hand 3 knowledge about the incident, it is pure speculation as to what John would have actually 4 said or remembered at the time of trial. Evans, 285 F.3d at 377. Federal courts are not 5 forums in which to relitigate state trials[,]” Barefoot v. Estelle, 463 U.S. 880, 887 (1983), 6 and “it is well settled that upon habeas corpus the court will not weigh the evidence.” Hyde 7 v. Shine, 199 U.S. 62, 84 (1905). Given John’s inconsistent statements to law enforcement 8 and inability to remember everything from the night in question, John’s testimony could 9 have undermined the State’s case or Petitioner’s case—the Court can only speculate as to 10 what John’s testimony might have been. Therefore, while the Court is not required to 11 consider prejudice because Petitioner has failed to show that counsel’s performance was 12 deficient, the undersigned finds that even if John had testified at trial, Petitioner has not 13 shown a reasonable probability that John’s testimony would have probably changed the 14 verdict.51 See Hurles v. Ryan, 752 F.3d 768, 781–82 (9th Cir. 2014) (in capital case, counsel 15 was likely deficient for failing to investigate and locate a witness who could have provided 16 crucial insight into defendant’s behavior and mental state, but defendant failed to “show a 17 reasonable probability that but for counsel’s failure to track down the witness, the result of 18 the guilt phase would have been different”; because witness had not been found, court 19 could only speculate as to the nature of her testimony and whether it would have helped or 20 hurt defense; thus, defendant’s “claim of prejudice amounts to mere speculation”); Richter, 21 131 S. Ct. at 792 (to establish Strickland prejudice, the likelihood of a different result must 22 be substantial, not just conceivable). 23 Accordingly, the state court’s finding that Petitioner’s IAC claim was without merit 24 is supported by the record before this Court and was not an objectively unreasonable 25 application of Strickland. The undersigned therefore recommends that the District Court 26 deny relief on Ground Two (c). 27 51 In addition, as noted above, there was other strong evidence of Petitioner’s guilt at trial, 28 including the DNA evidence and eyewitness testimony placing Petitioner and his wife at the scene of the fatal accident. See supra notes 44 and 45. - 63 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 64 of 78 1 iv. Ground Two (d) 2 Petitioner alleges that trial counsel was ineffective for failing to request a limiting 3 instruction on Petitioner’s parole status. Petitioner presented this claim in his second PCR 4 petition and in his petition for review to the COA, alleging in both pleadings that trial 5 counsel was ineffective for failing to submit a limiting instruction on Petitioner’s parole 6 status. (Ex. QQ at 69–70; Ex. WW at 7). Accordingly, this claim is properly exhausted. 7 As noted above, the trial court found that Petitioner failed to state any colorable 8 claims for relief under Strickland because Petitioner failed to show that counsel’s 9 performance was deficient or that the alleged deficiency prejudiced him. (Ex. UU at 173– 10 74). In denying relief on Petitioner’s petition for review, the Arizona COA did not 11 specifically address Petitioner’s IAC claims but found that Petitioner had failed to establish 12 that the trial court abused its discretion in denying the Rule 32 petition. (Ex. DDD at 25). 13 For purposes of federal habeas review, Petitioner bears the burden of showing that the post- 14 conviction relief court, in ruling that trial counsel was not ineffective, applied Strickland 15 in an objectively unreasonable manner. Here, the undersigned finds that the state court’s 16 finding that trial counsel was not ineffective for failing to request a limiting instruction on 17 Petitioner’s parole status is supported by the record before this Court and was not an 18 unreasonable application of Strickland. 19 In affirming Petitioner’s convictions and sentences on direct appeal, the COA 20 provided a detailed explanation of how the parole evidence came to be admitted at trial. 21 (Ex. DD at 1489–92). For brevity’s sake, the Court will not repeat that full explanation 22 here. The trial court ultimately ruled that the evidence was admissible as to Petitioner’s 23 motive for leaving the scene, in contradiction of the defense theory that Petitioner left due 24 to medical necessity. (Ex. Q at 887–88). The court advised Petitioner’s counsel that “it 25 would consider certainly a jury instruction, cautionary instruction, limiting instruction if 26 that’s something [Petitioner] would be interested in.” Id. at 88:6–9. On direct examination, 27 Petitioner’s wife, Shirley Chavez, testified that she drove Petitioner from the scene to the 28 hospital because he was badly injured and she thought he was going to bleed to death. (Ex. - 64 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 65 of 78 1 R at 912–16). Petitioner’s counsel asked Ms. Chavez whether she was “deliberately trying 2 to get Craig away from the accident scene because he was on parole at the time?” Ms. 3 Chavez responded, “Didn’t even cross my mind.” Id. at 923:24–924:2. On cross- 4 examination, the following exchange occurred: 5 BY MR. SERDEN: 6 Q. Now, your testimony was that you took him to the hospital because you were afraid he was going to bleed to death, 7 correct? 8 A. Yes. 9 Q. Okay. And you’ve already told the jury that he was on parole, correct? 10 A. No, I didn’t tell anybody he was on parole. 11 Q. Well, Mr. Conter asked you the question that he was on 12 parole and you answered yes, he was? 13 A. Well, then I did. 14 Q. Okay. So is that a possible reason -- 15 A. Mr. Serden, you’re getting me all confused and you’re trying to put words into my mouth. I was scared for my 16 husband’s life. I picked him up. I put him in the car. No, I am not a nurse. No, I didn’t see any other vehicles. 17 18 Id. at 942:1–16. The following day, the State called a parole supervisor from the Arizona 19 Department of Corrections who testified that, at the time of the incident, Petitioner was on 20 parole from a felony in Georgia. (Ex. S at 1092–94). The witness also testified that the 21 terms of Petitioner’s parole included not consuming alcohol, obeying all laws, and not 22 engaging in any violent or criminal behaviors. Id. at 1095. The jury submitted two 23 questions inquiring why Petitioner was on parole and both parties agreed it was irrelevant. 24 The court then instructed the jury that the reason Petitioner was on parole was not an issue 25 in the case and not something they should speculate about or needed to be concerned about. 26 Id. at 1098–99. During closing arguments, Petitioner’s counsel reiterated the argument that 27 Ms. Chavez took Petitioner from the scene because he was injured, not because of concern 28 that Petitioner might be violating his parole, and alleged that the State was “raising false - 65 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 66 of 78 1 specters” about what happened. (Ex. V at 1220–22). In rebuttal, the State argued that 2 Petitioner’s parole status gave him motive to flee the scene of the accident when he could 3 have stayed and waited for help. Id. at 1264–66; 1280. 4 Thus, with this background in mind, the question before the Court is not whether 5 the parole evidence should have been admitted in the first place, but whether trial counsel 6 was ineffective for failing to request a limiting instruction as to the proper use of that 7 evidence. “In general, the decision not to request a limiting instruction is ‘solidly within 8 the acceptable range of strategic tactics employed by trial lawyers in the mitigation of 9 damning evidence.’” Musladin v. Lamarque, 555 F.3d 830, 846 (9th Cir. 2009) (quoting 10 United States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996)); see also Pinkoson v. 11 Davenport, 2009 WL 2219285, at *5 (D. Ariz. July 24, 2009) (“Counsel’s decisions 12 regarding jury instructions are fairly construed as a strategic decision.”). Arizona courts 13 have recognized “the possible detriment to the defendant by singling out evidence of other 14 offenses and giving a special instruction upon the subject.” State v. Hernandez, 7 Ariz. 15 App. 200, 205 (1968), abrogation on other grounds recognized by State v. Harvill, 106 16 Ariz. 386, 391 (1970). Thus, “[e]xperienced defense counsel may very well consider it 17 good trial strategy to fail to ask for such an instruction or to object to such an instruction if 18 proposed.” Id. 19 Here, in rejecting the jurors’ questions as to the nature of Petitioner’s prior felony, 20 the court instructed the jurors that it was irrelevant and not something they should speculate 21 about because it was not part of the case. As Respondents argue, in light of the court’s 22 instruction, Petitioner’s counsel may have determined that a limiting instruction was 23 unnecessary given the court’s response to the jurors’ questions. Indeed, Petitioner does not 24 propose a limiting instruction that would accomplish more than the court’s instruction to 25 the jurors. Alternatively, counsel may have thought that requesting an instruction would 26 draw further attention to Petitioner’s parole status and therefore did not pursue the matter. 27 See Gregory, 74 F.3d at 823 (“If the lawyer cannot stop the evidence from being admitted, 28 it is perfectly rational to decide not to draw further attention to it by requesting a motion - 66 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 67 of 78 1 for limiting instruction.”); see also Posey v. Barnes, 2012 WL 13206923, at *10 n.6 (N.D. 2 Cal. Aug. 29, 2012) (“[O]nce the statement had been admitted, it was not unreasonable for 3 defense counsel to forgo a limiting instruction that might have drawn more attention to 4 [the] unfavorable testimony.”); Carignan v. Adams, 2009 WL 6388374, at *10 (S.D. Cal. 5 Oct. 21, 2009) (finding no error on counsel’s failure to request a limiting instruction on 6 parole status where asking for the instruction would have highlighted petitioner’s criminal 7 background and there was overwhelming evidence of guilt), report and recommendation 8 adopted, 2010 WL 1709590 (S.D. Cal. Apr. 26, 2010). Thus, because the trial court made 9 it clear that it would consider a limiting instruction if Petitioner’s counsel requested one, 10 counsel’s decision not to make such a request was not a mistake but a considered decision. 11 That Petitioner disagrees with counsel’s decision does not make the decision wrong. 12 “Under Strickland, counsel’s representation must be only objectively reasonable, not 13 flawless or to the highest degree of skill.” Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 14 2000); see also Yarborough, 540 U.S. at 8 (“The Sixth Amendment guarantees reasonable 15 competence, not perfect advocacy judged with the benefit of hindsight.”). 16 Further, regardless of whether counsel was deficient for failing to request a 17 limiting instruction, Petitioner has failed to establish prejudice. See Butcher v. Marquez, 18 758 F.2d 373, 377 (9th Cir. 1985) (where petitioner failed to prove that counsel erred in 19 failing to request an instruction “and that the error was one that a reasonably competent 20 attorney acting as a diligent conscientious advocate would not have made,” court need not 21 consider prejudice). After the court ruled that the parole evidence was admissible, 22 Petitioner’s counsel “drew the sting” by soliciting the testimony from Shirley Chavez on 23 direct examination. While the State’s theory was that Petitioner’s parole status gave him 24 motive to flee the scene, Defense counsel used Ms. Chavez’s testimony to bolster the 25 defense theory that Petitioner left due to a medical emergency—that Ms. Chavez was so 26 concerned for her husband’s life that all she could think about was getting him to the 27 hospital as quickly as possible. Thus, even if defense counsel had requested a limiting 28 instruction, and the court had given one, the jury would still have two theories before it - 67 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 68 of 78 1 positing different reasons why Petitioner left the scene of the accident. Motive for leaving 2 the scene was not an element of the charges, and as discussed throughout this opinion, the 3 evidence before the jury was sufficient to support Petitioner’s conviction regardless of his 4 reason for leaving the scene. Especially in light of the court’s instruction to the jury that 5 the nature of Petitioner’s underlying felony was irrelevant, it is not reasonably probable 6 that a result more favorable to Petitioner would have been reached if trial counsel had 7 requested the limiting instruction. See Eppard v. Janda, 2013 WL 1401216, at *11 (C.D. 8 Cal. Mar. 4, 2013) (“To prevail on a claim of ineffective assistance for failure to request 9 an instruction, a petitioner must establish that the failure to request the instruction fell 10 below an objective standard of reasonableness and that a reasonable probability exists that 11 had the request been made, it would have been granted and the result of the trial would 12 have been different.”). The fact that no juror questions regarding Petitioner’s parole status 13 were raised during jury deliberations is evidence that the jurors followed the court’s 14 instructions and further underscores the lack of prejudice on this issue. 15 Accordingly, the state court’s finding that Petitioner’s IAC claim was without merit 16 is supported by the record before this Court and was not an objectively unreasonable 17 application of Strickland. The undersigned therefore recommends that the District Court 18 deny relief on Ground Two (d). 19 v. Ground Six 20 Petitioner alleges that appellate counsel was ineffective for failing to raise and 21 preserve the cognizable issues of prosecutorial misconduct, sufficiency of the evidence, 22 and double punishment/consecutive sentences, thereby “depriving fundamental 23 preservation and exhaustion.” (Doc. 7 at 25). Petitioner does not elaborate as to what 24 specific arguments counsel should have raised in relation to these issues on direct appeal. 25 In his second PCR petition, Petitioner alleged that appellate counsel was ineffective 26 for failing to raise appealable issues and that counsel had only raised the parole status 27 limiting instruction claim. (Ex. QQ at 70–71). Petitioner specifically argued that appellate 28 counsel should have raised claims regarding: (a) denial of a fair trial; (b) insufficient - 68 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 69 of 78 1 evidence to support the verdict; (c) denial of compulsory process because Laughlin, 2 Steiner, and John were absent from trial; (d) prosecutorial misconduct for withholding the 3 recording of Laughlin’s 911 call, vouching for officers’ mistakes as excusable and stating 4 the defense presented a smoke and mirrors case, repeatedly referring to Petitioner’s parole 5 status in rebuttal closing arguments, and failing to investigate Medina’s injuries and submit 6 photographs; (e) loss of presumption of innocence from photographs showing Petitioner 7 handcuffed and in a neck brace; and (f) the trial court sentenced Petitioner to multiple 8 punishments under a single prosecution when concurrent terms should have been imposed. 9 In his petition for review to the COA, Petitioner asserted ineffective assistance of appellate 10 counsel for failing to raise all colorable claims: (a) denial of a fair trial; (b) insufficient 11 evidence to support the verdict; (c) violation of compulsory process; (d) prosecutorial 12 misconduct for perjury and vouching; (d) loss of presumption of innocence; and (e) double 13 punishment. (Ex. WW at 7). Thus, the undersigned finds that Petitioner has properly 14 exhausted the claims he now raises on habeas—that appellate counsel was ineffective for 15 failing to raise claims of prosecutorial misconduct, sufficiency of the evidence, and double 16 punishment/consecutive sentences. 17 As noted above, the trial court found that Petitioner failed to state any colorable 18 claims for relief under Strickland because Petitioner failed to show that counsel’s 19 performance was deficient or that the alleged deficiency prejudiced him. (Ex. UU at 173– 20 74). In denying relief on Petitioner’s petition for review, the Arizona COA did not 21 specifically address Petitioner’s IAC claims but found that Petitioner had failed to establish 22 that the trial court abused its discretion in denying the Rule 32 petition. (Ex. DDD at 25). 23 For purposes of federal habeas review, Petitioner bears the burden of showing that the post- 24 conviction relief court, in ruling that appellate counsel was not ineffective, applied 25 Strickland in an objectively unreasonable manner. Here, the undersigned finds that the state 26 court’s finding that appellate counsel was not ineffective for failing to raise additional 27 claims on direct appeal is supported by the record before this Court and was not an 28 unreasonable application of Strickland. - 69 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 70 of 78 1 The Supreme Court, “in holding that a State must provide counsel for an indigent 2 appellant on his first appeal as of right, [has] recognized the superior ability of trained 3 counsel in the ‘examination into the record, research of the law, and marshalling of 4 arguments on [the appellant’s] behalf.’” Jones, 463 U.S. at 751 (second alteration in 5 original) (quoting Douglas v. California, 372 U.S. 353, 358 (1963)); see also United States 6 v. Ricks, 810 F.2d 195 (4th Cir. 1987) (“Decisions by appellate counsel concerning which 7 legal issues will be presented on appeal are ‘uniquely within the lawyer’s skill and 8 competence, and their resolution is ultimately left to his judgment.’” (quoting Cerbo v. 9 Fauver, 616 F.2d 714, 718 (3d Cir.), cert. denied, 449 U.S. 858 (1980))). “There is no 10 constitutional requirement that an advocate argue every issue on appeal, or that he present 11 those chosen by the defendant. The determination of the issues to be raised in the appellate 12 court is a matter which addresses itself to the sound discretion of the advocate.” State v. 13 Jesperson, 1997 WL 39501, at *2 (Tenn. Crim. App. Jan. 28, 1997) (citing Jones, 463 U.S. 14 at 750–51). “There is no requirement that an attorney appeal issues that are clearly 15 untenable[, and c]ounsel need not appeal every possible question of law at the risk of being 16 found to be ineffective.” Gustave, 627 F.2d at 906. Thus, the question of what claims 17 should be raised in the appellate court is left to the sound discretion of appellate counsel. 18 Here, while Petitioner argues appellate counsel was ineffective for failing to raise 19 issues of prosecutorial misconduct, sufficiency of the evidence, and double punishment, 20 Petitioner does not provide further detail as to what these claims should have been. See 21 Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (“cursory and vague claim cannot 22 support habeas relief”). Petitioner alleges that he sent appellate counsel a 13-page letter of 23 issues that he wanted her to raise and that counsel dismissed it and sent it back, talking to 24 him in a disrespectful manner. (Doc. 17 at 39–40). Petitioner further alleges that appellate 25 counsel told him he could raise the issues, including prosecutorial misconduct, in the Rule 26 32 petition. Id. The record reflects that appellate counsel’s letter to Petitioner stated that 27 Petitioner’s complaints about discovery were not issues for appeal as long as trial counsel 28 received the discovery, even if Petitioner did not personally see every document, but that - 70 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 71 of 78 1 if Petitioner was complaining that trial counsel did not provide him with copies of 2 documents, Petitioner could raise the IAC claim in a Rule 32 petition. (Ex. MMM at 97). 3 The letter also stated: 4 Unless there was some proper objection or motion regarding the absence of certain witnesses from trial, that is not going to 5 be an issue. After the appeal, if you begin a Rule 32 proceeding, you can discuss whether their absence was 6 improperly obtained, whose fault that was, and whether they have anything to say that would have changed the verdict. That 7 is also the only avenue for your complaints about introduction of evidence on toxicology. 8 9 Id. at 98. Thus, appellate counsel’s letter to Petitioner advised that some claims could not 10 be properly raised on direct appeal, but that Petitioner could pursue those claims on PCR. 11 While Petitioner may disagree with appellate counsel’s evaluation of the issues, an 12 “attorney need not advance every argument, regardless of merit, urged by the appellant.” 13 Evitts, 469 U.S. at 394. 14 Petitioner further contends that appellate counsel could have raised two or three of 15 the many prosecutorial misconduct issues and “while they might not have been 16 constitutional violations individually, taken as a whole the misconduct should have been 17 viewed as cumulative[,] where taken together [they] may have amounted to reversible 18 error.” (Doc. 17 at 40). But the Court’s inquiry is not what counsel could have done, but 19 whether the decisions counsel made were reasonable. Babbit, 151 F.3d at 1173. That 20 Petitioner disagrees with appellate counsel’s decision to only raise the parole status limiting 21 instruction claim does not make counsel ineffective for failing to raise issues that counsel, 22 in exercising her discretion, reasonably determined should not be presented. Gustave, 627 23 F.2d at 906; Jesperson, 1997 WL 39501, at *2. Counsel may have reasoned that there were 24 no other viable claims for appeal, or that the limiting instruction claim was the strongest 25 argument and thus the issue most likely to result in having Petitioner’s convictions 26 overturned. “When counsel focuses on some issues to the exclusion of others, there is a 27 strong presumption that he did so for tactical reasons rather than through sheer neglect.” 28 Yarborough, 540 U.S. at 8. “That presumption has particular force where a petitioner bases - 71 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 72 of 78 1 his ineffective-assistance claim solely on the trial record, creating a situation in which a 2 court may have no way of knowing whether a seemingly unusual or misguided action by 3 counsel had a sound strategic motive.” Id. (internal quotations and citation omitted). 4 “Moreover, even if an omission is inadvertent, relief is not automatic. The Sixth 5 Amendment guarantees reasonable competence, not perfect advocacy judged with the 6 benefit of hindsight.” Id. Petitioner’s bold assertion that the ignored issues are clearly 7 stronger than the issue counsel did present is wholly insufficient to show that appellate 8 counsel acted below an objective standard of reasonableness under prevailing professional 9 norms. (Doc. 17 at 40); Strickland, 466 U.S. at 687–88. 10 Accordingly, the state court’s finding that Petitioner’s ineffective assistance of 11 appellate counsel claim was without merit is supported by the record before this Court and 12 was not an objectively unreasonable application of Strickland. Petitioner has not 13 established that appellate counsel’s performance was constitutionally deficient; thus, the 14 Court need not consider prejudice. Strickland, 466 U.S. at 697–700; LaGrand, 133 F.3d at 15 1270. The undersigned therefore recommends that the District Court deny relief on Ground 16 Six. 17 E. Request for Discovery and Evidentiary Hearing 18 Petitioner requests discovery under Rule 6 and alleges that it is the duty of the Court 19 to provide the necessary procedures for an adequate inquiry. (Doc. 17 at 10; 74–75). 20 Petitioner also requests an evidentiary hearing under Rule 8 stating that because no 21 evidentiary hearing was held in state court, he is entitled to one in federal court if he alleges 22 facts that, if proved, would entitle him to relief. Id. at 11–12. 23 a. Discovery 24 A habeas petitioner is not entitled to discovery “as a matter of ordinary course.” 25 Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356, 26 1358 (9th Cir. 1993). “Rather, discovery is available only in the discretion of the court and 27 for good cause shown.” Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999); see Rule 28 6(a), Rules Governing § 2254 Cases. Whether a petitioner has established “good cause” - 72 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 73 of 78 1 for discovery requires the court to determine the essential elements of the petitioner’s 2 substantive claim and evaluate whether “specific allegations before the court show reason 3 to believe that the petitioner may, if the facts are fully developed, be able to demonstrate 4 that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09. 5 Here, the undersigned finds that Petitioner has not shown good cause for the 6 requested discovery. Petitioner requests transcripts of the proceedings that Respondents 7 noted they did not have transcripts for because “he feels they relate to the true cause of 8 [his] conviction and support the actual innocence claim to the fullest,” and specifically asks 9 the Court to order Respondents to furnish everything related to probable cause, the grand 10 jury proceedings, and the indictments. (Doc. 17 at 2; see also id. at 3–5, 11).52 Petitioner 11 contends that Detective LaBenz committed perjury when he told the grand jury that 12 Kendrick John never made a statement to law enforcement, but that the record shows 13 LaBenz interviewed John shortly after the accident; therefore, the April 13, 2012 grand 14 jury records relate to Petitioner’s claim of actual innocence. Id. at 5. However, despite 15 Petitioner’s repeated assertions of “evidence” to support a biased and perjured grand jury 16 indictment, Petitioner’s allegations amount to no more than speculation. 53 As discussed 17 previously in this Report and Recommendation, John’s statements to the police right after 18 the accident and in the months that followed were contradictory, and though they may have 19 cast some doubt on the State’s theory at trial, it is wholly unknown what John might have 20 actually testified to.54 Petitioner’s efforts to reconstruct the facts and offer an alternative 21 52 Some of the documents Petitioner requests include notice of defenses and rebuttal 22 witnesses, preliminary jury instructions, and the stipulations of Petitioner’s and Medina’s injuries. Petitioner fails to show why the requested documents are necessary. 23 53 To the extent that Petitioner argues that LaBenz falsely testified at trial about what John said to him, that contention is belied by the record. On cross-examination, LaBenz stated 24 that when he spoke with John while John was detained in the back of the patrol car, John did not connect anything with the accident. (Ex. P at 752:1–4). LaBenz’s testimony is 25 supported by the transcript of that interview, where John repeatedly denied knowing anything about an accident and said Medina was not hurt. (Doc. 7-1 at 65–66). 26 54 Moreover, the Maricopa County Superior Court docket and index of record both reflect that after the original indictment issued on April 13, 2012, (Ex. TTT at 242; Ex. UUU at 27 244), Petitioner’s counsel filed a motion to remand for a new finding of probable cause, (Ex. UUU at 245). The court granted the motion and a new indictment issued on August 28 12, 2012. (Ex. TTT at 240–41; Ex. UUU at 245). Thus, in light of the remand indictment, the original April 13, 2012 indictment is irrelevant. - 73 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 74 of 78 1 interpretation of the evidence are insufficient to persuade the Court that discovery is 2 warranted.55 3 The Ninth Circuit has explained that “discovery is only available in the discretion 4 of the court and for good cause shown” and is not “meant to be a fishing expedition for 5 habeas petitioners to explore their case in search of its existence.” Rich, 187 F.3d at 1067– 6 68 (internal quotation marks omitted); see also Strickler v. Greene, 527 U.S. 263, 286 7 (1999) (“Mere speculation that some exculpatory material may have been withheld is 8 unlikely to establish good cause for a discovery request on collateral review.”); Thomas v. 9 United States, 849 F.3d 669, 681 (6th Cir. 2017) (“Bald assertions and conclusory 10 allegations do not provide sufficient ground to warrant requiring the government to respond 11 to discovery or to require an evidentiary hearing.”). As explained above, the undersigned 12 finds that Petitioner’s claims can be resolved on the state court record and should be denied; 13 evidentiary development is therefore unnecessary. Further, as discussed in the section 14 below, Pinholster limits this Court’s review to the record that was before the state court 15 and thus forecloses Petitioner’s request for discovery. See Runningeagle, 686 F.3d at 773 16 (petitioner was not entitled to discovery, expansion of the record, or an evidentiary hearing 17 where his claim was governed by § 2254(d)(1)); Kemp v. Ryan, 638 F.3d 1245, 1258–60 18 (9th Cir. 2011) (if AEDPA bars a petitioner from having an evidentiary hearing, the 19 petitioner could necessarily not show “good cause” for discovery under Rule 6); Prentice 20 v. Baker, 2013 WL 1182065, at *2 (D. Nev. Mar. 19, 2013) (The court “may consider the 21 likely futility of the discovery where federal review, as recognized in Cullen v. Pinholster, 22 131 S. Ct. 1388 (2011), is limited under 28 U.S.C. § 2254(d)(1) to the record before the 23 state court that adjudicated the claim on the merits.”).56 24 55 Petitioner also alleges that some of the dates of the state court proceedings are unknown to him and false. Respondents’ Answer incorrectly lists the date of the grand jury 25 proceedings for the original indictment as April 13, 2013, and the proceedings for the remand indictment as August 19, 2013. See Doc. 14 at 5. The original indictment issued 26 April 13, 2012 and the remand indictment issued August 20, 2012. See Exs. A and D. 56 Pursuant to Rule 5 of the Rules Governing § 2254 Cases, the respondent is required to 27 list in the answer what transcripts are available and what proceedings were recorded but not transcribed. The respondent is also required to attach to the answer parts of the 28 transcript that the respondent considers relevant. The judge may order the respondent to provide other transcripts or to have untranscribed proceedings transcribed. Thus, while the - 74 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 75 of 78 1 b. Evidentiary Hearing 2 The decision whether to grant an evidentiary hearing is generally left to the sound 3 discretion of the district court, subject to the requirements of AEDPA. Schriro v. 4 Landrigan, 550 U.S. 465, 473 (2007) (citing Townsend v. Sain, 372 U.S. 293, 313 (1963), 5 and noting that its pre-AEDPA basic rule has not changed). Pursuant to Rule 8(a) of the 6 Rules Governing § 2254 Cases, “the judge must review the answer [and] any transcripts 7 and records of state-court proceedings . . . to determine whether an evidentiary hearing is 8 warranted.” As an initial matter, the court should not conduct an evidentiary hearing on a 9 petitioner’s claim if the state court adjudicated the claim on the merits. Pinholster, 563 10 U.S. at 181 (holding that “review under § 2254(d)(1) is limited to the record that was before 11 the state court that adjudicated the claim on the merits”); see also Murray, 745 F.3d at 1001 12 (Pinholster applies to review under § 2254(d)(2)). This bar may be lifted, however, if the 13 state court’s adjudication of the claim was contrary to or an unreasonable application of 14 clearly established Supreme Court law, Johnson v. Finn, 665 F.3d 1063, 1069 n.1 (9th Cir. 15 2011), or if the state court’s decision was based on an unreasonable determination of the 16 facts, Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 2010).57 17 Court has discretion to order Respondents to furnish additional transcripts, the undersigned finds that doing so is unnecessary and would not aid the Court’s decision in this matter. 18 57 If the state court did not adjudicate the claim on the merits, then the Pinholster rule has no application. 563 U.S. at 186 (“[N]ot all federal habeas claims by state prisoners fall 19 within the scope of § 2254(d), which applies only to claims ‘adjudicated on the merits in State court proceedings.’ At a minimum, therefore, § 2254(e)(2) still restricts the discretion 20 of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.”). However, pursuant to § 2254(e)(2), the Court 21 may not hold a hearing unless it first determines that the petitioner exercised diligence in trying to develop the factual basis of the claim in state court. Williams v. Taylor, 529 U.S. 22 420, 432 (2000). The diligence assessment requires a determination of whether a petitioner “made a 23 reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Id. at 435. Absent unusual circumstances, diligence requires 24 that a petitioner “at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437; see also Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 25 2010) (“a petitioner who ‘knew of the existence of [ ] information’ at the time of his state court proceedings, but did not present it until federal habeas proceedings, ‘failed to develop 26 the factual basis for his claim diligently’” (quoting Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005))). A petitioner’s attorney’s fault is generally attributed to the 27 petitioner for purposes of § 2254(e)(2)’s diligence requirement. Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014). 28 If the failure to develop a claim’s factual basis is attributable to the petitioner, a federal court may hold an evidentiary hearing only if the claim relies on (1) “a new rule of - 75 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 76 of 78 1 Here, as in Pinholster, § 2254(d) applies to Petitioner’s IAC claims addressed in 2 Section D above because the claims were adjudicated by the state court on the merits. See 3 Pinholster, 563 U.S. at 187–88 (explaining that § 2254(d) “applies even where there has 4 been a summary denial” and in such circumstances the “‘habeas court must determine what 5 arguments or theories . . . could have supporte[d] the state court’s decision; and then it must 6 ask whether it is possible fairminded jurists could disagree that those arguments or theories 7 are inconsistent with the holding in a prior decision of [the Supreme] Court.’” (first 8 alteration in original) (quoting Richter, 562 U.S. at 102)). This Court’s review is thus 9 limited to whether the state court unreasonably applied Strickland’s clearly established 10 federal law to Petitioner’s IAC claims. See § 2254(d)(1). Under this Court’s “doubly 11 deferential” standard of review, Petitioner must therefore “demonstrate that it was 12 necessarily unreasonable for the [state court] to conclude: (1) that he had not overcome the 13 strong presumption of [counsel’s] competence; and (2) that he had failed to undermine 14 confidence in the jury’s [verdict].” Pinholster, 563 U.S. at 190. As discussed above, the 15 undersigned finds that Petitioner has failed to make this showing. To the extent that 16 Petitioner argues this Court should hold an evidentiary hearing and consider additional 17 constitutional law, made retroactive to cases on collateral review by the Supreme Court, 18 that was previously unavailable;” or (2) “a factual predicate that could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A). 19 In addition, “the facts underlying the claim [must] be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have 20 found the [petitioner] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). If a petitioner has diligently pursued his claim in state court, the district court may 21 then consider whether an evidentiary hearing is appropriate or required under the factors set forth in Townsend, 372 U.S. at 313. See Earp v. Ornoski, 431 F.3d 1158, 1166–67 (9th 22 Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669–70 (9th Cir. 2005). If one of the Townsend factors is met, the court may grant an evidentiary hearing if the petitioner’s 23 factual allegations, if proved, would entitle him to relief under AEDPA’s deferential review standards. See Landrigan, 550 U.S. at 474. Stated another way, “[i]f the defendant can 24 establish any one of those circumstances [in Townsend], then the state court’s decision was based on an unreasonable determination of the facts and the federal court can independently 25 review the merits of that decision by conducting an evidentiary hearing.” Earp, 431 F.3d at 1167. 26 Finally, if the petitioner’s claim can be resolved on the existing record, a federal evidentiary hearing is unnecessary. Landrigan, 550 U.S. at 474. Nor will a hearing be 27 granted “[i]n the absence of anything more concrete than the speculation—present in every case—that new evidence might exist.” United States v. Zuno-Arce, 209 F.3d 1095, 1103 28 (9th Cir. 2000), overruled on other grounds by Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002). - 76 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 77 of 78 1 evidence before ruling on the merits of his IAC claims, that argument is wholly foreclosed 2 by Pinholster’s holding that this Court’s review under § 2254(d)(1) is limited to the record 3 that was before the state court. 563 U.S. at 181. As the Supreme Court explained: 4 Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, 5 or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of 6 the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at 7 that same time i.e., the record before the state court. 8 Id. at 181–82. The Court further observed that “[i]t would be strange to ask federal courts 9 to analyze whether a state court’s adjudication resulted in a decision that unreasonably 10 applied federal law to facts not before the state court.” Id. at 182–83; see also id. at 182 11 (“It would be contrary to [§ 2254(b)’s exhaustion requirement] to allow a petitioner to 12 overcome an adverse state-court decision with new evidence introduced in a federal habeas 13 court and reviewed by that court in the first instance effectively de novo.”). Accordingly, 14 the undersigned finds that Pinholster precludes this Court from holding an evidentiary 15 hearing on Petitioner’s IAC claims. See id. at 187 n.11 (“Pinholster has failed to show that 16 the California Supreme Court unreasonably applied clearly established federal law on the 17 record before that court, which brings our analysis to an end. Even if the evidence adduced 18 in the District Court additionally supports his claim, as Pinholster contends, we are 19 precluded from considering it.” (citations omitted)).58 20 58 Even if Pinholster did not foreclose Petitioner’s request for an evidentiary hearing, the 21 undersigned further finds that Petitioner is not entitled to such a hearing. See West v. Ryan, 608 F.3d 477 (9th Cir. 2010) (holding that although petitioner was diligent in pursing 22 claims in state court, petitioner failed to raise a colorable claim that counsel’s performance fell below an objective standard of reasonableness; therefore, district court did not abuse 23 its discretion in denying claim without holding an evidentiary hearing). “In deciding whether to grant an evidentiary hearing, a federal court must consider 24 whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Landrigan, 550 U.S. at 25 474. However, “if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.; 26 see also Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). As explained above, Petitioner has not demonstrated that trial or appellate counsel’s performance fell below an 27 objective standard of reasonableness. Thus, the state court’s determination that Petitioner failed to raise a colorable claim of IAC was not objectively unreasonable. Accordingly, the 28 undersigned finds that “there is nothing to be determined in an evidentiary hearing” because Petitioner could not develop a factual record that would entitle him to habeas relief. - 77 - Case 2:18-cv-03144-RCC-EJM Document 19 Filed 12/22/20 Page 78 of 78 1 IV. RECOMMENDATION 2 In conclusion, the Magistrate Judge RECOMMENDS that the District Court 3 DENY Petitioner Craig Justice’s Petition for Writ of Habeas Corpus. (Doc. 7). 4 Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections 5 within fourteen days after being served with a copy of this Report and Recommendation. 6 A party may respond to another party’s objections within fourteen days after being served 7 with a copy thereof. Fed. R. Civ. P. 72(b). No reply to any response shall be filed. See id. 8 If objections are not timely filed, then the parties’ rights to de novo review by the District 9 Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 10 Cir. 2003) (en banc). 11 Dated this 21st day of December, 2020. 12 13 14 15 16 17 18 19 20 21 22 23 24 West, 608 F.3d at 490 (holding that where record, “viewed through the deferential lenses of AEDPA and Strickland,” did not support petitioner’s IAC claim, and petitioner “pointed 25 to no potentially powerful mitigating evidence that counsel overlooked or failed to develop, nor has he alleged facts that, if decided in his favor, would establish a colorable claim under 26 the first prong of Strickland[,] . . . there [was] nothing to be determined in an evidentiary hearing, and the district court did not abuse its discretion by denying his claim without 27 one”); Landrigan, 550 U.S. at 474; see also Pinholster, 563 U.S. at 186 (“Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal courts sitting in habeas are not an alternative 28 forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.’” (quoting Williams, 529 U.S. at 437)). - 78 -