Hamilton 258478 v. Shinn ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Hale Hamilton, No. CV-18-08088-PCT-JJT (JFM) 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 At issue is the Report and Recommendation (Doc. 44, “R&R”) issued in this matter 16 by United States Magistrate Judge James F. Metcalf recommending that the Court dismiss 17 with prejudice several of the grounds in the Petition for Writ of Habeas Corpus pursuant to 18 28 U.S.C. § 2254 (Doc. 12, “Petition”) as procedurally defaulted, and deny the remainder 19 on the merits. Petitioner timely filed an Objection (Doc. 47, “Obj.”), to which Respondents 20 filed a Reply (Doc. 48). 21 In a lengthy, thorough and painstakingly detailed and justified 35-page R&R, Judge 22 Metcalf correctly concluded that Grounds 1, 2A and 3B must be dismissed with prejudice as 23 each is procedurally defaulted with no showing of cause and prejudice to excuse the default; 24 and that Grounds 2B through 2F fail on an evaluation of the merits and thus must be denied.1 25 Finally, although Petitioner withdrew his Ground 3A, the Court nonetheless adopts Judge 26 Metcalf’s conclusion that 28 U.S.C. § 2254(i) bars Petitioner’s ineffective assistance of 27 counsel (“IAC”) claim as against his state PCR counsel, and thus will deny it. 28 1 The R&R notes, and the Court agrees, that in the alternative, Ground 2A would fail on its merits, were the Court to reach those merits. 1 As the R&R so thoroughly treats with the analysis of each of these many grounds 2 and the Court adopts that analysis in full, it will not restate same here. Rather, the Court 3 will address the specific analytical points of the R&R to which Petitioner raises actual 4 objections. It need not and will not address the vast majority of the Objection which merely 5 repeats the arguments he made in the Petition, Reply and separate Replies to Respondent’s 6 First and Third Supplements (Docs. 12, 18, 22, 39), as that content presents no basis on 7 which to reject the R&R’s conclusions. See Sullivan v. Schriro, No. CV-04-1517-PHX- 8 DGC, 2006 WL 1516005 at *1 (D. Ariz. May 30, 2006). 9 Petitioner makes only two substantive arguments in his Objection: 1) that in 10 evaluating his Ground 3B argument that trial counsel was ineffective for failing to raise a 11 mere presence defense, Judge Metcalf wrongly concluded the claim was not substantial for 12 purposes of analysis under Martinez v. Ryan2; and 2) Judge Metcalf wrongly made 13 “credibility determinations” regarding the affiants who would support a contradictory alibi 14 defense. (Obj. at 2-3.) The Court is unpersuaded by either of these arguments. 15 First, Judge Metcalf correctly concluded that the claim of IAC by trial counsel for 16 failure to raise a mere presence defense (Ground 3B) was procedurally defaulted, and 17 Petitioner does not so dispute. But Petitioner can overcome such a procedural default with 18 a showing of cause and prejudice surrounding that default. To make that showing, Martinez 19 requires that Petitioner first demonstrate: 1) ineffectiveness of trial counsel within the 20 meaning of Strickland v. Washington3; and 2) that such ineffectiveness was substantial. For 21 purposes of this analysis, the Ninth Circuit holds that ineffectiveness is substantial when 22 “the claim has some merit.” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012)(cleaned up). 23 Conversely, a claim of ineffectiveness is insubstantial where “it does not have any merit” 24 or “is wholly without factual support.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 25 2013). 26 In evaluating the claim, Judge Metcalf presumed the first prong of Martinez was 27 satisfied, and assumed arguendo that trial counsel’s decision not to seek the mere presence 28 2 132 S. Ct. 1309 (2012). 3 104 S. Ct. 2052 (1984). 1 instruction was ineffective assistance. (R&R at 20.) Turning to analysis of whether trial 2 counsel’s failure to pursue a mere presence defense was “substantial,” Judge Metcalf 3 necessarily evaluated the evidence on the record before him. To the extent Petitioner 4 assigns error to that action, he is incorrect. In a habeas proceeding, the Court is required to 5 evaluate the information available to support an IAC claim when presented with a Martinez 6 analysis.4 Judge Metcalf evaluated the information the parties here presented to determine 7 whether it meets the threshold set forth in Martinez, as he was required to do, and upon 8 review of the record in this matter, the Court agrees with his conclusion. 9 The sole information Petitioner cites to advance his mere presence defense argument 10 is his acknowledgement to his trial counsel that he was present at the shooting. Even 11 considered standing alone, this piece of information does not have merit as, and does not 12 present “factual support” for, an IAC claim for failure to pursue the defense within the 13 meaning of Detrich. It is diminished further when the Court considers the existence of 14 substantial evidence contrary to the argument of mere presence, including Petitioner’s 15 admission to a friend that he was the shooter, accomplice testimony stating the same, and 16 evidence that he and two others agreed to lure and attack the victim as retribution. To the 17 extent Petitioner argues consideration of these three pieces of evidence constitutes an 18 impermissible “weighing,” the Court disagrees. The information is properly evaluated in 19 the Martinez analysis, at a minimum because it informs the Court as to the reasonableness 20 of trial counsel’s strategic decision to pursue or avoid a defense and reinforces Strickland’s 21 presumption that “the challenged actions of counsel were ‘sound trial strategy’” in 22 furtherance of the highly deferential standard applied here. But in any event it is 23 permissibly considered by the Court in determining whether the Martinez threshold is met. 24 Second, to the extent Petitioner argues Judge Metcalf made credibility 25 determinations about Petitioner’s putative alibi witnesses, he is incorrect. A careful review 26 of the R&R shows Judge Metcalf made no determinations of credibility. Judge Metcalf 27 28 4 Petitioner also argues Judge Metcalf erred by making such determination without first holding a evidentiary hearing. This is incorrect. The record is the record, and it contains || recited the PCR court’s findings, which he evaluated with the standard of deference 2|| dictated by AEDPA, and nothing more. This was not error. 3 IT IS ORDERED overruling the Objection (Doc. 47) and adopting the R&R’s (Doc. 44) recommendations and underlying analysis. 5 IT IS FURTHER ORDERED denying and dismissing the Petition for Writ of 6 || Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 12) as follows: 7 1. Grounds 1, 2A and 3B are dismissed with prejudice; 8 2. Grounds 2B through 2F, and 3A are denied. 9 IT IS FURTHER ORDERED denying a Certificate of Appealability in this matter. || Regarding the procedural rulings, jurists of reason would not find debatable whether the 11 || Court was correct in them. Regarding denials on the merits, such jurists would not find the 12 || Court’s assessment of the constitutional claims debatable or wrong. 13 IT IS FURTHER ORDERED directing the Clerk of Court to close this matter and enter judgment accordingly. 15 Dated this 10th day of June, 2021. CN 16 “wok: 17 wef hlee— Unifga StatesDistrict Judge 18 19 20 21 22 23 24 25 26 27 28 -4-