Burns v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Chadwick Burns, No. CV-19-00262-TUC-SHR (EJM) 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 Petitioner Chadwick Burns filed a pro se Petition for a Writ of Habeas Corpus 16 (“PWHC”) pursuant to 28 U.S.C. § 2254 on May 6, 2019. (Doc. 1).1 Petitioner raises four 17 grounds for relief with several sub claims: (1)(a) the trial court failed to sua sponte give a 18 Willits instruction2 where evidence had been lost or destroyed, and (1)(b) trial counsel was 19 ineffective for failing to request a Willits instruction, prejudicing Petitioner’s ability to have 20 a fair trial in violation of the Sixth and Fourteenth Amendments; (2) the trial court erred 21 when it denied the defense motion to inspect the undercover vehicle, denying Petitioner his 22 constitutional rights to due process and confrontation; (3) trial counsel was ineffective for 23 failing to have an investigator inspect the angle of view one would have to the relevant 24 areas of the scene and the lighting of the motel parking lot, denying Petitioner a fair trial 25 1 Although the Petition was docketed by the Clerk on May 9, 2019, the Court assumes that Petitioner deposited his PWHC in the prison mailing system on May 6, 2019, as indicated 26 by Petitioner’s signature on his Petition. (Doc. 1 at 11). To give Petitioner the benefit of the earliest date calculations, the Court makes this same assumption for all other documents 27 filed by Petitioner and included in the record for the present matter. 2 State v. Willits, 96 Ariz. 184, 191 (1964) (holding that if the state fails to preserve 28 evidence that is potentially exonerating, the accused may be entitled to an instruction informing the jury that it may draw an adverse inference from the state’s action). 1 in violation of the Sixth and Fourteenth Amendments; and (4) trial counsel was ineffective 2 for failing to interview Petitioner’s co-defendant, Angela Parks, because her testimony 3 could have cleared Petitioner, violating Petitioner’s right to effective assistance of counsel 4 under the Sixth and Fourteenth Amendments. 5 Respondents filed an Answer contending that some of Petitioner’s claims are 6 unexhausted and procedurally defaulted, and that the remaining claims lack merit. (Doc. 7 11). Respondents request that the Court deny and dismiss the PWHC with prejudice. 8 Petitioner did not file a reply. 9 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter 10 was referred to Magistrate Judge Markovich for a Report and Recommendation. The 11 undersigned finds that several of Petitioner’s claims are procedurally defaulted and barred 12 from this Court’s review, and that Petitioner does not demonstrate cause and prejudice or 13 a fundamental miscarriage of justice to excuse the procedural default of his claims. As to 14 Petitioner’s claims that are cognizable, properly exhausted, and not defaulted, the 15 undersigned finds that Petitioner has failed to show that the state court’s determination of 16 the claims was contrary to or based on an unreasonable application of clearly established 17 federal law, or based on an unreasonable interpretation of the facts. Accordingly, the 18 Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 19 2254 for a Writ of Habeas Corpus. 20 I. FACTUAL AND PROCEDURAL BACKGROUND 21 A. Trial, Sentencing, and Appeal 22 On June 3, 2015 a Pima County jury found Petitioner guilty of one count of sale of 23 a dangerous drug. (Doc. 11 Ex. D).3 On July 13, 2015 Petitioner was sentenced to a 24 mitigated term of 10.5 years imprisonment. (Ex. E). 25 The Arizona Court of Appeals summarized the background of Petitioner’s case as 26 follows:4 27 3 All exhibit numbers refer to Respondent’s Answer, Doc. 11, and all page numbers refer to the documents as filed in CM/ECF, unless otherwise noted. 28 4 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) 1 In June 2014, Tucson Police officers conducted a sting operation directed at street sales of narcotics. Officer Lorence 2 Jove, working undercover and driving an unmarked vehicle, made contact with Angelina Parks and, after she entered the 3 vehicle, Jove asked for “G,” the street name _ for methamphetamine. Parks told Jove to drive to a nearby motel, 4 where they parked in the front parking lot to the left of another car. 5 Jove gave Parks $30 in marked currency, and Parks walked to 6 the far end of the motel complex, where she entered one of the rooms. Burns met Parks at the door, and after a few minutes, 7 the two walked back toward Jove’s vehicle. Although Parks went directly to the front passenger window of Jove’s vehicle, 8 Burns walked to the back of the nearby car. Parks leaned in through the window and informed Jove that the 9 methamphetamine would cost $40. Meanwhile, Jove watched Burns place the methamphetamine" wrapped into a small ball 10 in “the corner of a shopping bag”—onto the trunk of the sedan. Jove gave Parks a $20 bill, explaining it was all he had left. 11 Parks then walked back to Burns, collected $10 for change as well as the ball of methamphetamine, and returned to Jove to 12 complete the transaction. Burns and Parks were arrested later that night, and officers found one of the marked $20 bills in 13 Burns’s possession. 14 (Ex. A). 15 Following his conviction, Petitioner sought review in the Arizona COA. (Ex. F). 16 Appointed counsel filed a brief arguing that the trial court erred in denying the Batson 17 challenge because the State failed to give a legitimate race neutral reason to strike the only 18 African American on the panel. (Ex. G). Counsel later filed a supplemental brief presenting 19 a second issue for review, arguing that the trial court erred when it denied Petitioner’s 20 motion to inspect the undercover vehicle. (Ex. H). On October 4, 2016 the COA issued its 21 decision affirming Petitioner’s conviction and sentence. (Ex. A). The court addressed each 22 of Petitioner’s claims in detail but found no error. Id. 23 On October 31, 2016 Petitioner’s counsel filed a petition for review in the Arizona 24 Supreme Court (Ex. K), which the court denied on March 15, 2017 (Ex. L). On June 7, 25 2017 the COA issued its mandate. (Ex. M). 26 27 28 (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness). -3- 1 B. Petition for Post-Conviction Relief 2 On January 6, 2017 Petitioner initiated proceedings in Pima County Superior Court 3 for Rule 32 post-conviction relief (“PCR”).5 (Ex. N).6 Appointed counsel filed a petition 4 alleging that trial counsel was ineffective for: (1) failing to enlist a defense investigator to 5 travel to the scene to inspect the angle of view from the undercover car to the relevant areas 6 around the motel; (2) not filing a more detailed and specific second motion to inspect the 7 undercover vehicle; (3) not bringing to the court’s attention that the photographs disclosed 8 by the State utilized enhanced lighting and therefore did not adequately represent the 9 officer’s viewpoint; (4) failing to interview Ms. Parks or call her as a witness; (5) failing 10 to argue at the evidentiary hearing that the undercover car’s description and license plate 11 had already been disclosed by the defense, mooting the State’s interest in maintaining the 12 anonymity of the car; (6) failing to consult with Petitioner between the first and second 13 trials; (7) failing to provide Petitioner with a copy of the witness audio recordings; (8) 14 failing to properly flesh out the issue of the police buy money not being photographed or 15 placed into evidence; (9) failing to request a Willits instruction for the State’s failure to 16 preserve the evidence; and (10) failing to respond to Petitioner’s request to obtain the police 17 radio logs. (Ex. U at 7–10). The petition also alleged that appellate counsel was ineffective 18 for arguing very specific issues that did not include due process or fair trial claims. Id. at 19 10. 20 On December 11, 2017 the court issued its order summarily dismissing the petition 21 pursuant to Rule 32.6(c). (Ex. X). In a detailed opinion, the court first set forth the factual 22 5 The Arizona Rules of Criminal Procedure were amended effective January 20, 2020. New Rule 32 applies to defendants convicted after a trial or a contested probation violation 23 hearing, and new Rule 33 applies to pleading defendants and defendants who admitted a probation violation or had an automatic probation violation. Because Petitioner’s state 24 court actions were filed prior to January 20, 2020 and he had no state court action pending at the time the new rules went into effect, former Rule 32 applies to Petitioner’s case and 25 the Court will cite to former Rule 32 throughout this opinion. See Arizona Supreme Court Order R-19-0012, available at: 26 https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure 6 Petitioner filed two notices of PCR that were summarily dismissed by the trial court as 27 untimely. (Exs. N, O, P, and Q). After Petitioner filed a motion for reconsideration (Ex. R), the court determined that it had denied the PCR notices in error and ordered that its prior 28 orders finding the notices untimely be vacated (Ex. T). The court issued a corrected notice to initiate Rule 32 proceedings and appointed counsel to represent Petitioner. Id. 1 and procedural history of Petitioner’s case, then turned to Petitioner’s claims for relief 2 arguing ineffective assistance of trial and appellate counsel. Id. The court first rejected 3 Petitioner’s claim that counsel should have used an investigator to inspect the angle of 4 view, stating that Petitioner failed to provide details as to which areas should have been 5 examined, how the officer’s description was inaccurate, or how an inspection could have 6 been probative. Id. at 40. The court noted that counsel did an extensive cross-examination 7 using photographs illustrating the varying lighting and audio from the body bug recording, 8 and that counsel sent an expert to prepare a diagram of the scene that was used to refute 9 the officer’s testimony about what he could see. Id. at 40–41. As to the claim that counsel 10 was ineffective for failing to file a more detailed motion to inspect the undercover vehicle, 11 the court noted that counsel obtained photographs from various vantage points in the 12 vehicle, measured the tint, and retained an expert who provided testimony about the car. 13 Id. at 41. Petitioner failed to state what should have been included in the motion, what 14 access to the car would have provided that the photographs and testimony did not, or how 15 an inspection would have informed counsel’s exhaustive cross-examination of the officer. 16 As to the claim that counsel was ineffective for failing to argue at the evidentiary hearing 17 that enhanced lighting was used to take photos of the undercover vehicle, the court stated 18 that counsel did argue this point and the trial court commented that all parties were in 19 agreement that a camera was not going to capture what the human eye can see. The trial 20 court allowed the defense to request additional photos from the State. Id. at 42. As to the 21 claim that counsel failed to interview or call Ms. Parks as a witness, Ms. Parks had her own 22 case pending at the time, and Petitioner failed to provide an affidavit or other support 23 showing that she would testify and what her testimony would have been. As to the claim 24 that counsel should have consulted with Petitioner between the first and second trials, 25 Petitioner failed to indicate why this should have happened and how he was prejudiced by 26 it. As to the claims that counsel should have provided Petitioner with a CD of the witness 27 audio recordings and requested the radio logs, a transcript of the body bug recording was 28 used at trial and Petitioner failed to allege what in the recordings or radio logs would have 1 changed the outcome of his case. As to the claims that counsel should have fleshed out the 2 issue of the buy money and requested a Willits instruction, it is clear that the evidence was 3 preserved and admitted at trial and therefore there was nothing for counsel to flesh out and 4 nothing that would have allowed counsel to request a Willits instruction. Id. at 42–43. 5 Finally, as to the claim that appellate counsel was ineffective for arguing very specific 6 issues that did not include due process or fair trial claims, Petitioner’s conclusory 7 allegations failed to articulate any due process or fair trial arguments that were available 8 that appellate counsel failed to make. Id. at 43. 9 For each claim, the court found that Petitioner failed to show that counsel’s 10 performance fell below an objective standard of reasonableness or how Petitioner was 11 prejudiced. The court concluded that Petitioner failed to present any material issue of fact 12 or law that would entitle him to an evidentiary hearing and had failed to state a colorable 13 claim for relief on any basis and ordered the petition summarily denied pursuant to Ariz. 14 R. Crim. P. 32.6(c). Id. at 44. 15 On December 27, 2017 Petitioner filed a petition for review in the Arizona COA. 16 (Ex. Y). Petitioner presented six issues of ineffective assistance of counsel for review: (1) 17 counsel’s failure to have an investigator inspect the angle of view one would have while 18 sitting inside an undercover car and assess the motel lighting; (2) counsel’s failure to file a 19 more detailed motion to inspect the undercover vehicle and raise the fact that the State’s 20 claim of wanting to preserve the car’s anonymity was false; (3) counsel’s failure to consult 21 with Petitioner between the first and second trials; (4) counsel’s failure to flush out the 22 issue of lost or destroyed evidence and failure to request a Willits instruction; (5) appellate 23 counsel’s failure to raise Petitioner’s constitutional rights to due process, confrontation, 24 and a fair trial; and (6) whether Petitioner proved that there was a reasonable probability 25 that the results of the trial would have been different had he had effective assistance of 26 counsel. Id. at 49–51. 27 On May 7, 2018 the COA issued its decision granting review and denying relief. 28 (Ex. Z). The court stated that it had “reviewed the record and the trial court’s ruling and 1 conclude it correctly rejected [Petitioner’s] claims in its thorough and well-reasoned minute 2 entry, which we accordingly adopt.” Id. at 85. 3 Petitioner did not file a motion for reconsideration or a petition for review to the 4 Arizona Supreme Court. On September 5, 2018 the COA issued its mandate. (Ex. AA). 5 C. Habeas Petition 6 On September 5, 2019 Petitioner filed his PWHC in this Court. (Doc. 1). Petitioner 7 alleges four grounds for relief with several sub claims. The undersigned address each of 8 these claims below. For the reasons that follow, the undersigned finds that some of 9 Petitioner’s claims are unexhausted and procedurally defaulted, and that Petitioner has 10 failed to show cause and prejudice or a fundamental miscarriage of justice to excuse the 11 default of his claims. The undersigned finds that Petitioner’s remaining claims lack merit 12 and that Petitioner has failed to show that the state court’s resolution of his ineffective 13 assistance of counsel (“IAC”) claims was an objectively unreasonable application of 14 Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the undersigned recommends 15 that the District Court enter an Order denying the PWHC. 16 II. STANDARD OF REVIEW 17 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the 18 federal court’s power to grant a petition for a writ of habeas corpus on behalf of a state 19 prisoner. First, the federal court may only consider petitions alleging that a person is in 20 state custody “in violation of the Constitution or laws or treaties of the United States.” 28 21 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant 22 habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. 23 Additionally, if the petition includes a claim that was adjudicated on the merits in state 24 court proceedings, federal court review is limited by § 2254(d). 25 A. Exhaustion 26 A state prisoner must exhaust his state remedies before petitioning for a writ of 27 habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O’Sullivan v. Boerckel, 526 28 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts 1 the opportunity to rule upon the merits of his federal claims by fairly presenting them to 2 the state’s highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 3 27, 29 (2004) (“To provide the State with the necessary opportunity, the prisoner must 4 fairly present her claim in each appropriate state court . . . thereby alerting the court to the 5 federal nature of the claim.”). In Arizona, unless a prisoner has been sentenced to death, 6 the highest court requirement is satisfied if the petitioner has presented his federal claim to 7 the Arizona COA, either through the direct appeal process or post-conviction proceedings. 8 Crowell v. Knowles, 483 F. Supp. 2d 925, 931–33 (D. Ariz. 2007). 9 A claim is fairly presented if the petitioner describes both the operative facts and 10 the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 11 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 12 2007). The petitioner must have “characterized the claims he raised in state proceedings 13 specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), 14 opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “If a petitioner fails to 15 alert the state court to the fact that he is raising a federal constitutional claim, his federal 16 claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson 17 v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general appeals to broad 18 constitutional principles, such as due process, equal protection, and the right to a fair trial, 19 are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 20 1999). 21 However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims 22 in state court meets the technical requirements for exhaustion” if there are no state remedies 23 still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “This is 24 often referred to as ‘technical’ exhaustion because although the claim was not actually 25 exhausted in state court, the petitioner no longer has an available state remedy.” Thomas v. 26 Schriro, 2009 WL 775417, at *4 (D. Ariz. March 23, 2009). “If no state remedies are 27 currently available, a claim is technically exhausted,” but, as discussed below, the claim is 28 procedurally defaulted and is only subject to federal habeas review in a narrow set of 1 circumstances. Garcia v. Ryan, 2013 WL 4714370, at *8 (D. Ariz. Aug. 29, 2013). 2 B. Procedural Default 3 If a petitioner fails to fairly present his claim to the state courts in a procedurally 4 appropriate manner, the claim is procedurally defaulted and generally barred from federal 5 habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802–05 (1991). There are two categories 6 of procedural default. First, a claim may be procedurally defaulted in federal court if it was 7 actually raised in state court but found by that court to be defaulted on state procedural 8 grounds. Coleman, 501 U.S. at 729–30. Second, the claim may be procedurally defaulted 9 if the petitioner failed to present the claim in a necessary state court and “the court to which 10 the petitioner would be required to present his claims in order to meet the exhaustion 11 requirement would now find the claims procedurally barred.” Id. at 735 n.1; O’Sullivan, 12 526 U.S. at 848 (when time for filing state court petition has expired, petitioner’s failure to 13 timely present claims to state court results in a procedural default of those claims); Smith 14 v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court 15 resulted in procedural default of claims for federal habeas purposes when state’s rules for 16 filing petition for post-conviction relief barred petitioner from returning to state court to 17 exhaust his claims). 18 When a petitioner has procedurally defaulted his claims, federal habeas review 19 occurs only in limited circumstances. “A state prisoner may overcome the prohibition on 20 reviewing procedurally defaulted claims if he can show cause to excuse his failure to 21 comply with the state procedural rule and actual prejudice resulting from the alleged 22 constitutional violation.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (internal quotations 23 and citation omitted); Martinez v. Ryan, 566 U.S. 1, 10 (2012) (“A prisoner may obtain 24 federal review of a defaulted claim by showing cause for the default and prejudice from a 25 violation of federal law.”). Cause requires a showing “that some objective factor external 26 to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 27 Murray v. Carrier, 477 U.S. 478, 488 (1986). Impediments to compliance may include 28 interference by officials that makes compliance with the state’s procedural rule 1 impracticable, a showing that the factual or legal basis for the claim was not reasonably 2 available, or the procedural default was the result of ineffective assistance of counsel. Id. 3 at 488–89. Prejudice requires “showing, not merely that the errors at his trial created a 4 possibility of prejudice, but that they worked to his actual and substantial disadvantage, 5 infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 6 456 U.S. 152, 170 (1982). The Court need not examine the existence of prejudice if the 7 petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Thomas 8 v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991). 9 Additionally, a habeas petitioner “may also qualify for relief from his procedural 10 default if he can show that the procedural default would result in a ‘fundamental 11 miscarriage of justice.’” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting 12 Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule is 13 limited to habeas petitioners who can establish that “a constitutional violation has probably 14 resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327; see 15 also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028. 16 C. Adjudication on the Merits and § 2254(d) 17 The Ninth Circuit has held that “a state has ‘adjudicated’ a petitioner’s constitutional 18 claim ‘on the merits’ for purposes of § 2254(d) when it has decided the petitioner’s right 19 to post-conviction relief on the basis of the substance of the constitutional claim advanced, 20 rather than denying the claim on the basis of a procedural or other rule precluding state 21 court review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). 22 If a habeas petition includes a claim that was properly exhausted, has not been 23 procedurally defaulted, and was adjudicated on the merits in state court proceedings, 24 federal court review is limited by § 2254(d). Under § 2254(d)(1), a federal court cannot 25 grant habeas relief unless the petitioner shows: (1) that the state court’s decision was 26 contrary to federal law as clearly established in the holdings of the United States Supreme 27 Court at the time of the state court decision, Greene v. Fisher, 565 U.S. 34, 38 (2011); (2) 28 that it “involved an unreasonable application of” such law, § 2254(d)(1); or (3) that it “was 1 based on an unreasonable determination of the facts” in light of the record before the state 2 court, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86 (2011). This standard is 3 “difficult to meet.” Richter, 562 U.S. at 102. It is also a “highly deferential standard for 4 evaluating state court rulings . . . which demands that state court decisions be given the 5 benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal quotations 6 and citation omitted). 7 III. ANALYSIS7 8 A. Unexhausted and Procedurally Defaulted Claims 9 i. Ground One (a) 10 In his Ground One (a) claim, Petitioner alleges that the trial judge erred by failing 11 to sua sponte give a Willits instruction where there was evidence that was lost or destroyed, 12 prejudicing Petitioner’s ability to have a fair trial and violating the Sixth and Fourteenth 13 Amendments. Petitioner specifically contends that the two marked $5 bills used as buy 14 money, which Petitioner allegedly gave back to Ms. Parks to give to Officer Jove as change, 15 were not present at trial or admitted into evidence. However, a photocopy of the bills was 16 admitted at trial. 17 In Arizona, exhaustion is satisfied if a petitioner presents the federal basis of his 18 claim to the COA through either the direct appeal process or PCR proceedings. Here, 19 7 As a threshold matter, the Court must consider whether a PWHC is barred by the statute 20 of limitations. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir. 2002). AEDPA imposes a one-year statute of limitations for state prisoners filing federal habeas petitions. 28 U.S.C. 21 § 2244(d)(1). Here, Respondents do not dispute that the PWHC was timely filed. The undersigned finds that the PWHC was timely filed within one year from the date that the 22 Arizona COA issued its mandate on the PCR proceedings—the mandate issued on September 5, 2018 and Petitioner timely filed his PWHC on May 6, 2019. See Wells v. 23 Ryan, 2015 WL 9918159, at *8–*9 (D. Ariz. Aug. 13, 2015) (“[W]hen the Arizona Court of Appeals grants review of the trial court’s decision on a petition for post-conviction relief 24 but denies relief, and the petitioner does not seek further review, the post-conviction proceeding is pending until the date the appellate court issues its mandate.”) (collecting 25 cases and citing Ariz. R. Crim. P. 31.23 and 32.9(g)), report and recommendation adopted by 2016 WL 319529 (D. Ariz. Jan. 27, 2016); Ramon v. Ryan, 2010 WL 3564819, *6 (D. 26 Ariz. July 23, 2010) (same); see also Dixon v. Ryan, 2018 WL 3215655, at *2–*3 (D. Ariz. Apr. 2, 2018) (citing Wells and finding that the statute of limitations did not begin to run 27 until the COA issued its mandate, and rejecting respondents’ argument that the statute of limitations began to run on the day that the time for petitioner to seek review in the Arizona 28 Supreme Court expired), report and recommendation adopted by 2018 WL 3209417 (D. Ariz. June 29, 2018). 1 Petitioner did not raise this claim on direct appeal or during his PCR proceedings. While 2 Petitioner raised a related claim that trial counsel was ineffective for failing to request a 3 Willits instruction, that is insufficient to exhaust the separate and distinct claim that 4 Petitioner now raises on habeas. See Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) 5 (“in order to fulfill exhaustion requirements, a petitioner must present to the state courts 6 the substantial equivalent of the claim presented in federal court”); Tamalini v. Stewart, 7 249 F.3d 895, 898 (9th Cir. 2001) (a petitioner fairly presents his claim in state court only 8 if the state court claim described both the same set of operative facts and the applicable 9 law). Accordingly, the claim that Petitioner’s constitutional rights were violated because 10 the trial court failed to sua sponte give a Willits instruction is unexhausted because 11 Petitioner failed to properly present this claim to the state courts in a procedurally 12 appropriate manner. See Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004) (To 13 properly exhaust a claim, a petitioner must “give the Arizona courts a ‘fair opportunity’ to 14 act on his federal [] claim before presenting it to the federal courts.”); Baldwin, 541 U.S. 15 at 29; Crowell, 483 F. Supp. 2d at 931–33.8 16 ii. Ground Two 17 In his Ground Two claim, Petitioner alleges that the trial court erred when it denied 18 his motion to inspect the undercover vehicle, denying Petitioner’s constitutional rights to 19 due process and confrontation and a meaningful opportunity to present a complete defense. 20 On direct appeal, Petitioner raised a similar issue in his supplemental brief, alleging 21 that the trial court erred when it denied his motion to inspect the undercover vehicle 22 because the court’s decision was not based on the law and was not supported by any facts. 23 (Ex. H). However, Petitioner did not argue the issue as a federal, constitutional claim, but 24 rather as a state law claim of fundamental fairness, citing only to state case law and the 25 8 The undersigned further notes that whether the trial court adequately instructed the jury on the applicable state law is not a question of federal law. See Gilmore v. Taylor, 508 U.S. 26 333, 342 (1993) (“instructions that contain errors of state law may not form the basis for federal habeas relief”); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) 27 (instructional error “does not alone raise a ground cognizable in a federal habeas corpus proceeding”); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983) (“Insofar as 28 Gutierrez simply challenges the correctness of the state evidentiary rulings and the jury instructions, he has alleged no deprivation of federal rights.”). 1 Arizona Rules of Evidence.9 2 To properly exhaust a claim, a petitioner must “give the Arizona courts a ‘fair 3 opportunity’ to act on his federal [] claim before presenting it to the federal courts.” 4 Castillo, 399 F.3d at 998. “If a petitioner fails to alert the state court to the fact that he is 5 raising a federal constitutional claim, his federal claim is unexhausted regardless of its 6 similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 7 1996); see also Grey v. Netherland, 518 U.S. 152, 162–63 (1996) (a petitioner does not 8 satisfy the exhaustion requirement “by presenting the state courts only with the facts 9 necessary to state a claim for relief[;]” the specific constitutional right allegedly violated 10 must also be identified); Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If state courts are 11 to be given the opportunity to correct alleged violations of prisoners’ federal rights, they 12 must surely be alerted to the fact that the prisoners are asserting claims under the United 13 States Constitution.”); Lopez, 491 F.3d at 1040 (“in order to fulfill exhaustion 14 requirements, a petitioner must present to the state courts the substantial equivalent of the 15 claim presented in federal court”).10 Nor can Petitioner transform his state law claims into 16 9 In its decision, the COA noted that Petitioner did not argue any constitutional violation that resulted in fundamental, prejudicial error, and the court would not address it further. 17 (Ex. A at 5 n.2). 18 10 As this Court has explained: 19 Fair presentation requires a petitioner to describe both the operative facts and the federal legal theory to the state courts. 20 Reese, 541 U.S. at 28, 124 S. Ct. 1347. It is not enough that all of the facts necessary to support the federal claim were before 21 the state court or that a “somewhat similar” state law claim was raised. Reese, 541 U.S. at 28, 124 S. Ct. 1347 (stating that a 22 reference to ineffective assistance of counsel does not alert the court to federal nature of the claim). Rather, the habeas 23 petitioner must cite in state court to the specific constitutional guarantee upon which he bases his claim in federal court. 24 Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Similarly, general appeals to broad constitutional principles, 25 such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal 26 constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th 27 Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir.2000) (insufficient for prisoner to have made “a general 28 appeal to a constitutional guarantee,” such as a naked reference to “due process,” or to a “constitutional error” or a “fair trial”). 1 federal ones merely by asserting a violation of due process. See Rule 2(c), Rules Governing 2 § 2254 cases; Rivera v. Illinois, 556 U.S. 148, 158 (2009); Mayle v. Felix, 545 U.S. 644, 3 646 (2005); see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (a petitioner’s 4 conclusory suggestion that a constitutional right has been violated falls “far short of stating 5 a valid claim of constitutional violation” sufficient to provide a basis for habeas relief). 6 Accordingly, the undersigned finds that Petitioner’s claim in Ground Two is 7 unexhausted because he failed to properly present it to the state courts in a procedurally 8 appropriate manner. See Baldwin, 541 U.S. at 29; Castillo, 399 F.3d at 998; Crowell, 483 9 F. Supp. 2d at 931–33. 10 iii. Ground Four 11 In his Ground Four claim, Petitioner alleges trial counsel was ineffective for failing 12 to interview Petitioner’s co-defendant, Ms. Parks, because her testimony could have 13 cleared Petitioner. Petitioner alleges this violated his right to effective assistance of counsel 14 under the Sixth and Fourteenth Amendments. 15 Petitioner raised this same claim to the trial court on PCR, alleging that trial counsel 16 was ineffective for failing to interview Ms. Parks or call her as a witness. (Ex. U). However, 17 Petitioner abandoned this claim in his petition for review to the COA. See Ex. Y at 49–51 18 (listing claims Petitioner presented for review). Nor did the COA address the claim in its 19 decision. See Ex. Z at 2 (listing the IAC claims raised on PCR and stating that on review, 20 Petitioner repeated “several of his claims of ineffective assistance of trial counsel”) 21 (emphasis added). 22 Likewise, a mere reference to the “Constitution of the United States” does not preserve a federal claim. Gray v. Netherland, 23 518 U.S. 152, 162–63, 116 S. Ct. 2074, 135 L.Ed.2d 457 (1996). Even if the basis of a federal claim is “self-evident” or 24 if the claim would be decided “on the same considerations” under state or federal law, the petitioner must make the federal 25 nature of the claim “explicit either by citing federal law or the decision of the federal courts . . . .” Lyons, 232 F.3d at 668. A 26 state prisoner does not fairly present a claim to the state court if the court must read beyond the pleadings filed in that court 27 to discover the federal claim. Baldwin, 541 U.S. at 27, 124 S. Ct. 1347. 28 Date v. Schriro, 619 F. Supp. 2d 736, 764–65 (D. Ariz. 2008). 1 Although the undersigned finds that Petitioner did properly present his Ground Four 2 claim to the trial court on PCR, the claim is nevertheless unexhausted because Petitioner 3 failed to present it to the COA in his petition for review. Exhaustion requires that a 4 petitioner fairly present each claim to the state court in a procedurally appropriate manner. 5 Baldwin, 541 U.S. at 29. “[A] petitioner satisfies the exhaustion requirement if he properly 6 pursues a claim (1) throughout the entire direct appellate process of the state, or (2) 7 throughout one entire judicial post-conviction process available in the state.” Casey v. 8 Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas 9 Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). The COA is not required to address 10 a claim that the petitioner fails to raise. See Ariz. R. Crim. P. 32.16(c)(4) (“A party’s failure 11 to raise any issue that could be raised in the petition for review . . . constitutes a waiver of 12 appellate review of that issue.”). 13 Accordingly, the claim that trial counsel was ineffective for failing to interview Ms. 14 Parks is unexhausted because Petitioner failed to properly present it to the state courts in a 15 procedurally appropriate manner. See Ariz. R. Crim. P. 32.16(c)(4); Castillo, 399 F.3d at 16 998; Date, 619 F. Supp. 2d at 786 (IAC claims unexhausted where petitioner raised claims 17 in Rule 32 petition but failed to raise claims in petition for review to Arizona COA); 18 Crowell, 483 F. Supp. 2d at 931–33. 19 B. Effect of Procedural Bar 20 Claims not previously presented to the state courts on either direct appeal or 21 collateral review are generally barred from federal review because any attempt to return to 22 state court to present them would be futile unless the claims fit into a narrow range of 23 exceptions. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on 24 direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) 25 (petition for review must be filed within thirty days of trial court’s decision). Because these 26 rules have been found to be consistently and regularly followed, and because they are 27 independent of federal law, either their specific application to a claim by an Arizona court, 28 or their operation to preclude a return to state court to exhaust a claim, will procedurally 1 bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. 2 Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931–32 (9th Cir. 1998) 3 (Rule 32 is strictly followed); State v. Mata, 916 P.2d 1035, 1050–52 (Ariz. 1996) (waiver 4 and preclusion rules strictly applied in post-conviction proceedings). 5 As explained above, several of Petitioner’s claims are unexhausted because 6 Petitioner failed to properly present them to the state courts in a procedurally appropriate 7 manner. Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent 8 Petitioner from now exhausting those claims in state court. Accordingly, the claims are 9 both technically exhausted and procedurally defaulted and thus not properly before this 10 Court for review. See Crowell, 483 F. Supp. 2d at 931–33; Coleman, 501 U.S. at 732, 735 11 n.1; Garcia, 2013 WL 4714370 at * 8. 12 A federal court may not consider the merits of a procedurally defaulted claim unless 13 the petitioner can demonstrate cause for his noncompliance and actual prejudice, or 14 establish that a miscarriage of justice would result from the lack of review. See Schlup v. 15 Delo, 513 U.S. 298, 321 (1995). Both cause and prejudice must be shown to excuse a 16 procedural default, but the Court is not required to examine the existence of prejudice if 17 the petitioner fails to establish cause. Engle, 456 U.S. at 134 n.43; Thomas, 945 F.2d at 18 1123 n.10. 19 Here, Petitioner has failed to show cause for, or prejudice arising from, the 20 procedural default of his claims, and the Court can glean none from the record before it. 21 See Martinez, 566 U.S. at 10; Murray, 477 U.S. at 488. There was no objective factor 22 external to Petitioner’s defense that impeded his efforts to comply with the state’s 23 procedural rules; Petitioner simply failed to raise the specific claims he now attempts to 24 raise on habeas to the state courts in a timely and procedurally appropriate manner. 25 Petitioner does not allege any interference by officials that made compliance with the 26 state’s procedural rules impracticable and has not shown that the factual or legal basis for 27 the claims was not reasonably available. See Murray, 477 U.S. at 488–489. 28 Further, Petitioner’s status as an inmate and lack of legal knowledge do not 1 constitute cause. See Lewis v. Casey, 518 U.S. 343, 355 (1996) (The right of access to the 2 courts “does not guarantee inmates the wherewithal to transform themselves into litigating 3 engines capable of filing everything from shareholder derivative actions to slip-and-fall 4 claims. The tools it requires to be provided are those that the inmates need in order to attack 5 their sentences, directly or collaterally, and in order to challenge the conditions of their 6 confinement. Impairment of any other litigating capacity is simply one of the incidental 7 (and perfectly constitutional) consequences of conviction and incarceration.”); see also 8 Thomas, 945 F.2d at 1123 (alleged inadequate prison library and legal assistance 9 procedures did not establish cause where petitioner “failed to demonstrate that he, himself, 10 had been denied access to the library” and petitioner’s filing of pro se pleadings reflected 11 adequate access to and use of legal materials); Tacho v. Martinez, 862 F.2d 1376, 1381 12 (9th Cir. 1988) (petitioner’s arguments concerning his mental health and reliance upon 13 jailhouse lawyers did not constitute cause); Hughes, 800 F.2d at 908 (petitioner’s pro se 14 status and ignorance of the law do not satisfy the cause standard). 15 While the standard for cause and prejudice is one of discretion and is intended to be 16 flexible, it must yield to exceptional circumstances only. Hughes, 800 F.2d at 909. 17 Petitioner bears the responsibility for failing to raise his claims in a timely, properly filed 18 state proceeding and properly exhausting those claims to the Arizona COA. See Williams 19 v. Taylor, 529 U.S. 420, 437 (2000) (“Federal courts sitting in habeas are not an alternative 20 forum for trying facts and issues which a prisoner made insufficient effort to pursue in state 21 proceedings.”). Accordingly, because Petitioner has failed to establish cause to excuse the 22 procedural default of his claims, the Court need not examine the merits of Petitioner’s 23 defaulted claims or the purported prejudice.11 24 11 Petitioner does not argue a fundamental miscarriage of justice to excuse the procedural default of his claims. A federal court may review the merits of a procedurally defaulted 25 habeas claim if the petitioner demonstrates that failure to consider the merits of his claim will result in a “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. A 26 “fundamental miscarriage of justice” occurs when a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. Actual innocence thus serves 27 as a “gateway” for a petitioner to have procedurally or time-barred constitutional claims reviewed. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Smith v. Baldwin, 510 F.3d 28 1127, 1139–49 (9th Cir. 2007) (en banc) (A claim of innocence under Schlup is “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass 1 C. Merits 2 Petitioner’s remaining claims allege ineffective assistance of trial counsel. 3 i. Legal Standard 4 The Supreme Court established a two-part test for evaluating IAC claims in 5 Strickland v. Washington, 466 U.S. 668 (1984). To establish that counsel was ineffective 6 under Strickland, Petitioner must show: (1) that trial counsel’s performance was deficient; 7 and (2) that trial counsel’s deficient performance prejudiced Petitioner’s defense. Ortiz v. 8 Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (citing Strickland, 466 U.S. at 688, 694). To 9 establish deficient performance, Petitioner must show that “counsel made errors so serious 10 . . . that counsel’s representation fell below an objective standard of reasonableness . . . 11 under prevailing professional norms.” Strickland, 466 U.S. at 687–688. The relevant 12 inquiry is not what defense counsel could have done, but rather whether the decisions made 13 by defense counsel were reasonable. Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 14 1998). In considering this factor, counsel is strongly presumed to have rendered adequate 15 assistance and made all significant decisions in the exercise of reasonable professional 16 judgment. Strickland, 466 U.S. at 690. 17 The Ninth Circuit “h[as] explained that ‘[r]eview of counsel’s performance is highly 18 deferential and there is a strong presumption that counsel’s conduct fell within the wide 19 range of reasonable representation.’” Ortiz, 149 F.3d at 932 (quoting Hensley v. Crist, 67 20 F.3d 181, 184 (9th Cir. 1995)). “The reasonableness of counsel’s performance is to be 21 evaluated from counsel’s perspective at the time of the alleged error and in light of all the 22 circumstances[.]” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Additionally, “[a] 23 to have his otherwise barred constitutional claim considered on the merits.”). In order to pass through the Schlup gateway, a petitioner’s case must be “truly 24 extraordinary,” 513 U.S. at 327, and a “tenable actual-innocence gateway” claim will not be found unless the petitioner “persuades the district court that, in light of the new evidence, 25 no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 329). A showing that a 26 reasonable doubt exists in light of the new evidence is not sufficient; rather, the petitioner must show that “it is more likely than not that no reasonable juror would have found 27 [petitioner] guilty beyond a reasonable doubt.” Schlup, 513 U.S at 327. Thus, the “precedents holding that a habeas petitioner satisfied [the Schlup standard] have typically 28 involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1095–96 (9th Cir. 2013). 1 fair assessment of attorney performance requires that every effort be made to eliminate the 2 distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged 3 conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 4 466 U.S. at 689. Acts or omissions that “might be considered sound trial strategy” do not 5 constitute ineffective assistance. Id. 6 Even where trial counsel’s performance is deficient, a petitioner must also establish 7 prejudice in order to prevail on an IAC claim. To establish prejudice, a petitioner “must 8 show that there is a reasonable probability that, but for counsel’s unprofessional errors, the 9 result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A 10 reasonable probability is a probability sufficient to undermine confidence in the outcome.” 11 Id. Under the prejudice factor, “[a]n error by counsel, even if professionally unreasonable, 12 does not warrant setting aside the judgment of a criminal proceeding if the error had no 13 effect on the judgment.” Id. at 691. “The likelihood of a different result must be substantial, 14 not just conceivable.” Richter, 562 U.S. at 112. Further, because failure to make the 15 required showing of either deficient performance or prejudice defeats the claim, the court 16 need not address both factors where one is lacking. Strickland, 466 U.S. at 697–700; 17 LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both 18 deficiency and prejudice if the petitioner cannot establish one or the other). 19 Additionally, under the AEDPA, the federal court’s review of the state court’s 20 decision on an IAC claim is subject to another level of deference. Bell v. Cone, 535 U.S. 21 685, 698–699 (2002). This creates a “doubly deferential” review standard in which a 22 habeas petitioner must show not only that there was a violation of Strickland, but also that 23 the state court’s resolution of the claim was more than wrong, it was an objectively 24 unreasonable application of Strickland. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); 25 Bell, 535 U.S. at 698–99; Woodford, 537 U.S. at 25; Cullen v. Pinholster, 563 U.S. 170, 26 171 (2011) (federal habeas court’s review of state court’s decision on ineffective assistance 27 of counsel claim is “doubly deferential”). Thus, “[t]he pivotal question is whether the state 28 court’s application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 105. 1 ii. Ground One (b) 2 In Ground One (b), Petitioner alleges that trial counsel was ineffective for failing to 3 request a Willits instruction. Petitioner raised substantially the same claim in his Rule 32 4 petition (Ex. U) and his petition for review to the Arizona COA (Ex. Y) that he now alleges 5 on habeas. Thus, the undersigned finds that Petitioner’s Ground One (b) claim is properly 6 exhausted. 7 In his petition for PCR, Petitioner alleged that no evidence was disclosed to the 8 defense indicating that the two marked $5 bills were placed into evidence or photographed, 9 and that trial counsel was ineffective for failing to request a Willits instruction for not 10 preserving the bills. In denying PCR, the trial court summarized the background of this 11 claim as follows: 12 Officer Jove gave Ms. Parks one 20 dollar bill and two 5 dollar bills for a total of 30 dollars to buy meth. Ms. Parks left the car 13 to purchase it and came back and told the officer that it would now cost 40 dollars. Officer Jove only had a 20 dollar bill 14 remaining in buy money so he told her to get 10 dollars in change and he would then give her the second 20 dollar bill. 15 Officer Jove then saw Ms. Parks walk to the Defendant and conduct an exchange. Ms. Parks returns and hands him two 5 16 dollar bills that are confirmed by TPD as the same bills Officer Jove handed out of the original 30 dollars. 17 18 (Ex. X at 42–43). The court explained that: 19 It is clear from the trial transcripts that the police photo copied the buy money at issue to preserve exactly what money was 20 being used that night. Trial transcripts reveal that Officer Jove got a total of 53 dollars in various denominations that night that 21 was all photocopied before he left the station to begin the work. At trial, the State showed him State’s Exhibit #53, which was 22 the photocopy of the buy money that included the serial numbers of the two 5 dollars at issue. Once he got the two 5 23 dollar bills back from Ms. Parks, he compared the serial numbers on those 5 dollar bills to the photocopied 5 dollar bills 24 and found each matched. 25 Id. at 43. The court concluded that “[c]learly this evidence was preserved [and] the 26 photocopied buy money was admitted into evidence as State’s exhibit #53.” Id. Thus, 27 “[t]here was nothing to flesh out and nothing that would have allowed trial counsel to 28 request a Willits instruction.” Id. The court further found that Petitioner failed to show how 1 trial counsel acted deficiently under prevailing professional norms. 2 In his petition for review to the COA, Petitioner alleged that trial counsel was 3 ineffective for failing to flesh out the issue of lost or destroyed evidence and failing to 4 request a Willits instruction. (Ex. Y). In denying relief, the COA found that Petitioner failed 5 to show that the trial court abused its discretion in summarily denying the petition for PCR. 6 (Ex. Z). The COA stated that it had “reviewed the record and the trial court’s ruling and 7 conclude it correctly rejected those claims in its thorough and well-reasoned minute entry, 8 which we accordingly adopt.” (Ex. Z).12 9 For purposes of federal habeas review, Petitioner bears the burden of showing that 10 the state court, in ruling that counsel was not ineffective, applied Strickland in an 11 objectively unreasonable manner. In making this determination, “the question is not 12 whether counsel’s actions were reasonable,” but “whether there is any reasonable argument 13 that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. Here, the 14 undersigned finds that Petitioner has failed to meet his burden. 15 When reviewing a claim of IAC, this Court “begin[s] with the premise that under 16 the circumstances, the challenged action [] might be considered sound trial strategy . . . 17 [and w]e affirmatively entertain the range of possible reasons . . . counsel may have had 18 for proceeding as they did.” Elmore v. Sinclair, 799 F.3d 1238, 1248–49 (9th Cir. 2015) 19 (second and fifth alterations in original) (internal quotations and citations omitted). “As 20 long as defense counsel uses a sound trial strategy, employing that strategy does not 21 constitute deficient performance.” Elmore, 799 F.3d at 1250 (internal quotations and 22 citation omitted). “Counsel’s decisions regarding jury instructions are fairly construed as a 23 strategic decision.” Pinkoson v. Davenport, 2009 WL 2219285, at *5 (D. Ariz. July 24, 24 12 “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). 1 2009) (citing Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002)). 2 Here, Petitioner contends that trial counsel should have requested a Willits 3 instruction because the marked $5 bills were allegedly lost or destroyed. It is clear from 4 the undersigned’s review of the record that the buy money was photocopied, the photocopy 5 was placed into evidence, and the evidence was admitted at trial. Officer Jove’s testimony 6 explains how the buy money was photocopied at the beginning of the operation and the 7 serial numbers on the bills were verified with the numbers on the photocopies. (Ex. BB at 8 90–91). After Officer Jove received the two $5 bills back from Ms. Parks, he compared the 9 bills to the photocopies and verified that they matched. Id. at 100. Officer Jove also testified 10 that after the police get the money back, the buy money goes back into the fund to be used 11 for other operations—thus explaining why the actual bills would not be admitted into 12 evidence at trial. Id. While Petitioner contends that not having the bills at trial or placed in 13 evidence denied him a fair trial, Petitioner fails to show that the state court’s determination 14 of his IAC claim was objectively unreasonable. The PCR court reasoned that, because the 15 evidence was clearly preserved and admitted into evidence, there was nothing for trial 16 counsel to flesh out and no basis to request a Willits instruction. Thus, trial counsel could 17 not be ineffective for failing to request an instruction that neither the law nor the evidence 18 supported. 19 Further, regardless of whether trial counsel was deficient for failing to request a 20 Willits instruction, Petitioner has failed to establish prejudice. See Butcher v. Marquez, 758 21 F.2d 373, 377 (9th Cir. 1985) (where petitioner failed to prove that counsel erred in failing 22 to request an instruction “and that the error was one that a reasonably competent attorney 23 acting as a diligent conscientious advocate would not have made,” court need not consider 24 prejudice); see also Eppard v. Janda, 2013 WL 1401216, at *11 (C.D. Cal. Mar. 4, 2013) 25 (“To prevail on a claim of ineffective assistance for failure to request an instruction, a 26 petitioner must establish that the failure to request the instruction fell below an objective 27 standard of reasonableness and that a reasonable probability exists that had the request been 28 made, it would have been granted and the result of the trial would have been different.”). 1 Accordingly, the state court’s finding that Petitioner’s IAC claim was without merit 2 is supported by the record before this Court and was not an objectively unreasonable 3 application of Strickland. The undersigned therefore recommends that the District Court 4 deny relief on Ground One (b). 5 iii. Ground Three 6 Petitioner alleges that trial counsel was ineffective when he failed to have an 7 investigator inspect the angle of view one would have to relevant areas and the lighting of 8 the motel parking lot. Petitioner raised substantially the same claim in his PCR petition 9 (Ex. U) and his petition for review to the COA (Ex. Y). Thus, the undersigned finds that 10 Petitioner’s Ground Three claim is properly exhausted. 11 In his PCR petition, Petitioner argued that counsel was ineffective for failing to 12 enlist a defense investigator to travel to the scene to inspect the angle of view from the 13 undercover car to the relevant areas around the motel. Petitioner claimed that the viewpoint 14 was not as open as Officer Jove testified, and that counsel’s failure to pursue this prejudiced 15 Petitioner’s defense. In denying PCR on this claim, the trial court found that Petitioner 16 failed to provide details as to which areas should have been examined, how the officer’s 17 description was inaccurate, or how an inspection could have been probative. (Ex. X at 40). 18 The court explained that: 19 Trial counsel did an extensive cross-examination using various photographs taken at the scene using the same undercover car 20 parked in the same place at night, illustrating the varying lighting across the photos. In conjunction, trial counsel used 21 audio from the “body bug” recording that was running contemporaneous with the drug transaction where, at times, 22 Officer Jove would narrate what was happening. The cross focused on moments in which Jove was not able to see what 23 was happening due to distance, lighting, or not being in position. 24 25 Id.; see also id. at 41. The court further found that Petitioner’s claim was undermined by 26 the fact that trial counsel did send an investigator to make a diagram of the scene showing 27 how the undercover car and the Buick were positioned and the relative sizes of the cars, 28 which was used to refute Officer Jove’s testimony about what he could see from the 1 driver’s seat of the undercover car relative to the Buick. Id. The court concluded that, 2 “[o]ther than a conclusory statement that the failure to hire an investigator prejudiced him, 3 there is nothing in the defendant’s petition that articulates what would have been different 4 had an investigator been retained[,]” and that Petitioner failed to show how counsel’s 5 performance fell below an objective standard of reasonableness or caused him prejudice. 6 Id. at 41. 7 In his petition for review to the COA, Petitioner alleged that trial counsel was 8 ineffective for failing to have an investigator inspect the angle of view one would have 9 while sitting inside an undercover car and assess the motel lighting. (Ex. Y). In denying 10 relief, the COA found that Petitioner failed to show that the trial court abused its discretion 11 in summarily denying the petition for PCR. (Ex. Z). The COA stated that it had “reviewed 12 the record and the trial court’s ruling and conclude it correctly rejected those claims in its 13 thorough and well-reasoned minute entry, which we accordingly adopt.” (Ex. Z).13 14 For purposes of federal habeas review, Petitioner bears the burden of showing that 15 the state court, in ruling that counsel was not ineffective, applied Strickland in an 16 objectively unreasonable manner. Here, the undersigned finds that Petitioner has failed to 17 meet his burden. While Petitioner contends that counsel should have sent an investigator 18 because angle of view and lighting were the main focus of his trial, here, as on PCR, 19 Petitioner fails to explain what areas should have been examined, how Officer Jove’s 20 testimony was inaccurate, or how an inspection would have been probative. As the PCR 21 court noted, trial counsel conducted a thorough cross-examination of Officer Jove using 22 photos of the area and the body bug recording, and retained an expert to create a diagram 23 and give testimony on how the cars’ sizes and positions could interfere with Officer Jove’s 24 ability to see. While Petitioner contends that the expert failed to do any type of investigation 25 to prove Petitioner’s innocence, this contention is belied by the record and trial counsel’s 26 use of the diagram and expert testimony to refute Officer Jove’s testimony. Thus, while 27 Petitioner may disagree with counsel’s decision not to have the expert investigate the 28 13 See supra n.12 1 viewpoint further, his general allegations of ineffective assistance fall far from the 2 threshold required to show deficient performance under Strickland. 3 “The proper measure of attorney performance remains simply reasonableness under 4 prevailing professional norms.” Strickland, 466 U.S. at 688. As the Ninth Circuit has 5 artfully explained: “The test has nothing to do with what the best lawyers would have done. 6 Nor is the test even what most good lawyers would have done. We ask only whether some 7 reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel 8 acted at trial.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev’d on other 9 grounds, 525 U.S. 141 (1998). That Petitioner disagrees with counsel’s decision not to have 10 an investigator inspect the angle of view does not make the decision wrong. . See Gustave 11 v. U.S., 627 F.2d 901, 904 (1980) (“Mere criticism of a tactic or strategy is not in itself 12 sufficient to support a charge of inadequate representation.”). “Under Strickland, counsel’s 13 representation must be only objectively reasonable, not flawless or to the highest degree of 14 skill.” Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000); see also Jones v. Barnes, 463 15 U.S. 745, 751 (1983) (“[no decision of the Supreme Court] suggests . . . that the indigent 16 defendant has a constitutional right to compel appointed counsel to press nonfrivolous 17 points requested by the client, if counsel, as a matter of professional judgment, decides not 18 to present those points.”). 19 Accordingly, the state court’s finding that Petitioner’s IAC claim was without merit 20 is supported by the record before this Court and was not an objectively unreasonable 21 application of Strickland. The undersigned therefore recommends that the District Court 22 deny relief on Ground Three. 23 iv. Conclusion 24 In sum, Petitioner has not shown that the state court’s rejection of his Ground One 25 (b) and Ground Three claims was contrary to clearly established federal law, was based on 26 an unreasonable application of clearly established federal law, or was based on an 27 unreasonable determination of the facts considering the evidence presented in the state 28 court proceedings, and thus Petitioner is not entitled to federal habeas relief on these || claims. Accordingly, the state court’s finding that Petitioner’s [AC claims were without || merit is supported by the record before this Court and was not an objectively unreasonable || application of Strickland. The undersigned is mindful that the Court must construe the 4|| filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). However, the Court should not be the 6|| pro se litigant’s advocate, nor should the Court “supply additional factual allegations to 7 || round out [the pro se litigant’s] complaint or construct a legal theory on [his or her] behalf.” 8 || Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) (“judges have no obligation to act as counsel or paralegal to pro se litigants”). The undersigned therefore recommends that the District Court deny relief on 11 || Ground One (b) and Ground Three. 12] IV. RECOMMENDATION 13 In conclusion, the Magistrate Judge RECOMMENDS that the District Court 14|| DENY Petitioner Chadwick Burn’s Petition for Writ of Habeas Corpus. (Doc. 1). 15 Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections 16 || within fourteen days after being served with a copy of this Report and Recommendation. 17 || A party may respond to another party’s objections within fourteen days after being served 18 || with a copy thereof. Fed. R. Civ. P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties’ rights to de novo review by the District 20 || Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th || Cir. 2003) (en banc). 22 Dated this 16th day of April, 2021. 23 Cui ff “ Eric J. Markovich . United States Magistrate Judge 27 28 - 26 -