Ortiz v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Armando Andres Ortiz, No. CV-17-00623-TUC-JGZ 10 Petitioner, ORDER 11 v. 12 David Shinn, 13 Respondent. 14 15 Pending before the Court is Magistrate Judge D. Thomas Ferraro’s Report and 16 Recommendation (R&R) recommending that the District Court deny and dismiss Armando 17 Andres Ortiz’s Petition for Writ of Habeas Corpus. (Doc. 22.) Ortiz filed an objection, and 18 the State filed a response. (Docs. 23, 24.) 19 After an independent review of the parties’ briefing and of the record, the Court will 20 adopt Magistrate Judge Ferraro’s recommendation in part, and deny and dismiss Ortiz’s 21 petition. 22 STANDARD OF REVIEW 23 When reviewing a magistrate judge’s R&R, this Court “may accept, reject, or 24 modify, in whole or in part, the findings or recommendations made by the magistrate 25 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 26 findings and recommendations de novo if objection is made, but not otherwise.” United 27 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in 28 original). District courts are not required to conduct “any review at all . . . of any issue that 1 is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 2 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Further, a party is not entitled as of right to de novo 3 review of evidence or arguments which are raised for the first time in an objection to the 4 report and recommendation, and the Court’s decision to consider newly-raised arguments 5 is discretionary. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United States v. Howell, 6 231 F.3d 615, 621-622 (9th Cir. 2000). 7 DISCUSSION 8 I. Background 9 Following a jury trial, Ortiz was convicted of two counts of aggravated assault, one 10 count of burglary in the first degree, and two counts of attempted second-degree murder. 11 (Doc. 22, p. 2.) The Arizona Court of Appeals described the facts underlying Petitioner’s 12 state court convictions as follows: 13 One night in December 2011, Ortiz entered a convenience store with another individual and took two cases of beer from the cooler. After they left the 14 store without paying for the beer, S.S., a private security guard, confronted and “grabbed” Ortiz outside the door. Ortiz began striking the guard in the 15 face, and seconds later, a second security guard, J.W., emerged from the store, sprayed Ortiz with pepper spray, and attempted to wrestle him to the 16 ground. At some point during the struggle, Ortiz produced a handgun and, saying “I am not going back to jail” and “I am going to f---ing kill you,” fired 17 five rounds, one of which struck S.S. in the hand. 18 (Doc. 22, pp. 1-2.) 1 19 1 Ortiz objects to the recitation of the underlying facts as stated by the Arizona Court of Appeals. (Doc. 23, pp. 12-13.) Ortiz argues that the evidence at trial did not include 20 evidence as to his ineffective assistance of counsel claim, and such evidence must be evaluated by a “totality of the evidence,” rather than “ïn the light most favorable to sustain 21 the challenged convictions.” (Id.) In addition, Ortiz argues that the trial and appellate courts only considered the victim’s self-serving testimony, failing to acknowledge the conflicting 22 testimony of witness J.B., which was corroborated by video evidence. (Id. at 13.) The Court relies on the statement of facts from a state appellate court for its 23 preliminary summary of facts. The appellate court’s factual findings are “afforded a presumption of correctness that may be rebutted only by clear and convincing 24 evidence.” Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); see 28 U.S.C. § 2254(e)(1). Ortiz points to conflicting trial testimony which supports two different versions 25 of the facts, one of which supports the appellate court’s summary of the facts. (Doc. 23, p. 13.) This conflicting evidence does not constitute clear and convincing evidence that 26 rebuts the appellate court’s statement of facts. As far as Ortiz’s argument that the Court should apply a different standard of review of the evidence in evaluating his ineffective 27 assistance of counsel claim, the Court is aware of the applicable standards of review. In any event, in light of the Court’s conclusion that trial counsel’s conduct did not fall below 28 objective standards of reasonableness, Ortiz’s objection is moot. Additionally, to the extent Ortiz’s objection relates to claim 3(n), it is procedurally defaulted for the reasons set forth 1 On direct appeal, Ortiz’s convictions for attempted second-degree murder were 2 vacated due to an erroneous jury instruction that misstated the law. (Id. at 2; Doc. 11-1, p. 3 12.) Ortiz then challenged his remaining convictions and sentences on collateral review. 4 (Doc. 22, pp. 2-3.) The PCR court denied relief, but the Arizona Court of Appeals reversed 5 in part. (Id. at 3-4.) The appeals court concluded Ortiz stated a colorable claim of 6 ineffective assistance of counsel based on trial counsel’s failure to challenge the omission 7 of a jury instruction that identified an exception to the burglary charge and counsel’s 8 statement to the jury that Ortiz was guilty of every element of burglary. (Id. at 5.) The 9 appeals court remanded the case to the PCR court for an evidentiary hearing on that 10 ineffective assistance of counsel claim. (Id. at 5-6.) 11 On remand, the State moved to dismiss the burglary charge, and the PCR court 12 entered judgment vacating the burglary conviction and sentence, and affirming the 13 remaining convictions and sentences for aggravated assault. (Id. at 6.) Because of the 14 dismissal of the burglary charge, no evidentiary hearing was held. 15 II. Analysis 16 In his Petition for Writ of Habeas Corpus, Ortiz challenges his aggravated assault 17 convictions and sentences. Ortiz raises four grounds for relief with each ground containing 18 numerous claims. The claims are categorized as 1(a)-(c), 2(a)-(g), 3(a)-(s), and 4(a)-(d), 19 and are fully set forth in the R&R. (Doc. 22, pp. 6-11.) The Court will utilize the R&R’s 20 description and categorization of the claims, which were advanced by the parties in their 21 filings. 22 A. Ground One 23 1. Claims 1(a), 1(b), and 1(c) are Procedurally Defaulted 24 The Magistrate Judge recommends dismissing claims 1(a), 1(b), and 1(c) as 25 procedurally defaulted. (Doc. 22, pp. 13-20.) Ortiz admits that he did not exhaust his 26 Ground 1 claims, but asserts that the procedural default of the claims should be excused 27 for cause under Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. 23, p. 18.) Ortiz, however, 28 in Section II(C)(1). 1 raised this argument for the first time in his Objection to the R&R. Although this Court has 2 discretion to consider an issue raised for the first time in an objection, Brown, 279 F.3d at 3 744, the Court declines to do so. 4 Even if the Court were to consider Ortiz’s Martinez argument, it would not succeed 5 because Martinez is inapplicable to claims 1(a), 1(b), and 1(c). In Martinez, the Supreme 6 Court held that “when a State requires a prisoner to raise a claim of ineffective assistance 7 at trial in a collateral proceeding, a prisoner may establish cause for a procedural default of 8 such claims” when the prisoner was not represented by counsel in the initial-collateral 9 proceedings or when counsel in the initial-collateral proceedings was ineffective in raising 10 the claim. Martinez, 566 U.S. at 14. The Martinez holding only applies to excuse the 11 procedural default of ineffective assistance of counsel claims, id. at 17, and thus, would 12 not apply to claims 1(a) and 1(b). Further, Martinez’s holding only applies to excuse 13 procedural defaults occurring in initial-review collateral proceedings. Id. at 16 (“The 14 holding in this case does not concern . . . appeals from initial-review collateral 15 proceedings[.]”). Here, Ortiz raised each of his Ground One claims in the initial-collateral 16 proceedings, but procedurally defaulted all the claims when he failed to properly raise them 17 on appeal. (Doc. 22, p. 15.) Accordingly, the Court will adopt Magistrate Judge Ferraro’s 18 recommendation and dismiss claims 1(a), 1(b), and 1(c) as procedurally defaulted without 19 cause. 20 B. Ground Two 21 1. Claims 2(b) and 2(c) are Without Merit 22 The Magistrate Judge recommends dismissing claims 2(b) and 2(c) for lack of merit. 23 (Doc. 22, p. 24.) Claims 2(b) and (c) raise issues of ineffective assistance of trial counsel 24 with respect to the defense of the burglary charge. They are the same claims which the 25 Arizona Court of Appeals found colorable, and the PCR court resolved by dismissing the 26 burglary conviction on the State’s motion. The Magistrate Judge concluded that Ortiz 27 received the most comprehensive relief available from any ineffective assistance his trial 28 counsel may have rendered because the burglary charge was dismissed, thereby remedying 1 any prejudice to Ortiz from counsel’s conduct. (Id.) 2 Ortiz objects to the R&R, asserting that the Arizona Court of Appeals “implicitly 3 and explicitly found [his] trial counsel to be ineffective” when it determined that he had a 4 colorable claim for relief of ineffective assistance of counsel as to his burglary conviction, 5 and therefore he should not have to prove prejudice again. (Doc. 23, p. 19.) Ortiz asserts 6 that “since [his] counsel was found to be ineffective the result of the proceeding is 7 unreliable so the aggravated assault convictions cannot remain in full force and effect.” 8 (Doc. 23, p. 21.) 9 Ortiz’s arguments are legally and factually incorrect. First, no findings were made 10 that trial counsel was ineffective. Ortiz’s ineffective assistance of counsel claims might or 11 might not have been proven meritorious had an evidentiary hearing occurred. However, a 12 hearing was unnecessary because Ortiz received full relief on his claim: his burglary 13 conviction was vacated as well the corresponding sentence. 14 Second, even if counsel had been found to be ineffective in failing to object to the 15 burglary instruction and in erroneously telling the jury Ortiz was guilty of each of the 16 elements of the burglary charge, Ortiz fails to show how these errors prejudiced him with 17 respect to the aggravated assault convictions. There is no support for Ortiz’s conclusion 18 that the fundamental fairness of all of the proceedings is questionable based on the alleged 19 errors by counsel with respect to proof of the elements of the burglary charge.2 Ortiz must 20 show a reasonable probability that, but for counsel’s alleged errors, the result of the 21 proceeding as to the aggravated assault charges would have been different. See Strickland 22 v. Washington, 466 U.S. 668, 691 (1984) (stating that a judgment may not be set aside “if 23 the error had no effect on the judgment”). He fails to do so, and the existing record shows 24 otherwise. As stated by the Arizona Court of Appeals: “[w]e find no reasonable probability 25 2 Ortiz asserts in claim 3(e) that the court of appeals’ conclusion that he was not 26 prejudiced as to his aggravated assault charges due to trial counsel’s errors with regard to the burglary charge is not definitive because no evidentiary hearing was held. (Doc. 22, p. 27 8.) Ortiz, however, fails to identify any proposed evidence that would support his claim of prejudice. Moreover, as an additional basis for overruling Ortiz’s objection to dismissal of 28 Claim 3(e), Ortiz procedurally defaulted this claim by failing to raise it in his PCR petition and petition for review. (Doc. 22, p. 16.) 1 Ortiz would have been acquitted of the aggravated assaults had counsel performed 2 differently and that counsel had not been ineffective in failing to pursue a claim of self- 3 defense.” (Doc. 22, p. 25; see also Doc. 22, pp. 29-31 (trial court concluded counsel was 4 not ineffective in conceding the aggravated assault charges because there was 5 overwhelming evidence that Petitioner committed aggravated assault).) The Court will 6 therefore dismiss claims 2(b) and 2(c). 7 2. Claims 2(a), 2(d), 2(e), 2(f), and 2(g) are Procedurally Defaulted, Non- 8 Cognizable, or Not Claims. 9 The Magistrate Judge recommends that claims 2(a), 2(d), 2(e), 2(f), and 2(g) be 10 dismissed because they are procedurally defaulted, non-cognizable, or not claims. (Doc. 11 22, pp. 11-13, 15-18.) Ortiz fails to advance any specific objection to the recommended 12 dismissal of these claims. Accordingly, the Court will adopt the recommendation and 13 dismiss these claims. See Thomas, 474 U.S. at 149; see also 28 U.S.C. § 636(b)(1); Fed. 14 R. Civ. P. 72. 15 C. Ground Three 16 1. Claims 3(d), 3(e), 3(g), 3(h), 3(i), 3(m), 3(n), and 3(o) are Procedurally 17 Defaulted 18 The State argued and the Magistrate Judge recommends that claims 3(d), 3(e), 3(g), 19 3(h), 3(i), 3(m), 3(n), and 3(o) be dismissed as unexhausted and procedurally defaulted. 20 (Doc. 10, pp. 20-23; Doc. 22, pp. 13, 16-17, 21.) Ortiz did not raise these claims in his 21 PCR petition or in his petition for review in the state court of appeals. (Doc. 22, pp. 16, 22 20.)3 In his Reply in this case, Ortiz argues for the first time that default of claim 3(d) 23 should be excused under Martinez. (Doc. 16, pp. 7-10.) In his Objection to the R&R, Ortiz 24 argues that all claims under Ground 3 are related to the same claim, he is not a trained 25 lawyer, and Martinez should apply.4 (Doc. 23, p. 12.) Ortiz asserts that his Ground 3 IAC 26 3 Ortiz asserts that he raised claim 3(d) in state court in his Rule 32 reply brief and incorporated it by reference when he requested the appellate court to review the entire Rule 27 32 proceeding. (Doc. 16, p. 7.) Ortiz was required to raise the claim in his Rule 32 petition and in his petition for review. 28 4 The Objection contains the first instances in which Ortiz argued that Martinez 1 claims are substantial. 2 The Magistrate Judge concluded that Ortiz failed to exhaust his Ground 3 claims, 3 failed to provide any explanation for his failure to exhaust the claims, and Martinez did not 4 excuse the default because Ortiz failed to show that Ground 3 was a substantial claim as 5 required by Martinez. (Doc. 22, pp. 20-21.) Under Martinez, a prisoner has the burden to 6 demonstrate that his claims have “some merit” in order to excuse default. 566 U.S. at 14. 7 In his Objection, Ortiz simply restates the requirements of Martinez and asserts that 8 Martinez should apply to all of his defaulted claims. (Doc. 23, p. 12.) This is insufficient. 9 In Claim 3(d), Ortiz asserts that his trial counsel was ineffective in failing to elicit 10 testimony that would establish facts relevant to Ortiz’s claim of self-defense to the assault 11 charges. (Doc. 22, pp. 8-10.) Ortiz argues that his trial counsel failed to “investigate laws 12 and avoided facts [and] failed to develop them on the record.”5 (Id. at 19.) This Court 13 agrees with and adopts Magistrate Judge Ferraro’s finding that that “record establishes that 14 the jury was instructed on self-defense which belies Petitioner’s assertion that his counsel 15 ‘didn’t investigate the laws and avoided the facts [and] failed to develop them.’” (Id.) 16 Moreover, transcripts of interviews submitted by Ortiz show that counsel did investigate 17 before trial. (Doc. 23, pp. 14-16.) Although Ortiz argues that it was “patently unreasonable” 18 for counsel to request a self-defense instruction during trial, (doc. 23, p. 17), jury 19 instructions are often requested during trial because they must have “foundation in the 20 evidence.” See United States v. Heredia, 483 F.3d 913, 922 (9th Cir. 2003) (“[A] party is 21 entitled to an instruction to help it prove its theory of the case, if the instruction is 22 ‘supported by law and has foundation in the evidence.’” (citation omitted)). 23 Accordingly, the Court will adopt the recommendation that claims 3(d), 3(e), 3(g), 24 3(h), 3(i), 3(m), 3(n), and 3(o) be dismissed. 25 should be applied to excuse the procedural default of claims 3(e), 3(g), 3(h), 3(i), 3(m), 3(n), and 3(o). The Court need not address this new argument. Brown, 279 F.3d at 744. 26 5Some of Ortiz’s assertions of IAC in Ground 3 relate to trial counsel’s alleged 27 failure to properly defend charges other than the aggravated assault charges. (Doc. 22, p. 8-10.) The Court does not address the allegations which pertain to the burglary and second- 28 degree murder charges as those convictions have been vacated and Ortiz fails to identify any overlap in the charges. 1 2. Claims 3(a), 3(b), 3(c), 3(f), 3(i) 3(j), 3(k), 3(l), 3(m), 3(p), 3(q), 3(r), and 2 3(s) are Either Non-Cognizable or Without Merit 3 The Magistrate Judge recommends that claims 3(a), 3(b), 3(c), 3(f), 3(i), 3(j), 3(k), 4 3(l), 3(m) 3(p), 3(q), 3(r), and 3(s) be dismissed because they are non-cognizable or without 5 merit. (Doc. 22, pp. 11-12, 25-30.) The parties do not object to the Magistrate Judge’s 6 recommendation. Accordingly, the Court will adopt the recommendation and dismiss the 7 claims. See Thomas, 474 U.S. at 149; see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 8 D. Ground 4 9 1. Claim 4(b) 10 In Claim 4(b), which the Magistrate Judge concluded was exhausted, Ortiz alleges: 11 Trial counsel was ineffective for failing to submit a memo on the issue of aggravating factors as the trial court judge requested. If not for counsel’s 12 “unprofessional error,” [Petitioner] “would not have received a mandatory 20[-]year flat time sentence because the State had already waived the 13 opportunity to present the aggravating factor to the jury, so there is a reasonable opportunity of a different outcome. 14 15 (Doc. 22, p. 10.) In his Petition, Ortiz argued that counsel should have submitted a memo 16 asserting that the trial court was not authorized to make the finding that Ortiz was “on 17 release,” because that finding raised the maximum sentence he could receive from 11.25 18 years to 20 years. (Doc. 1, pp. 27-29.) 19 The Magistrate Judge found that Ortiz failed to establish that his trial counsel’s 20 conduct fell below objective standard of reasonableness. (Doc. 22, p. 31-32.) The 21 Magistrate Judge agreed with the Arizona Court of Appeals that the case law at the time 22 authorized the trial court to make the “on release” finding. (Id.) Additionally, the 23 Magistrate Judge found that Ortiz failed to establish prejudice because the 20-year sentence 24 was the presumptive sentence for his aggravated assault convictions based on an 25 enhancement for his two prior convictions. (Id. at 32.) Finally, the Magistrate Judge noted 26 that the trial court did not find any mitigating factors that would have entitled Ortiz to a 27 sentence less than the presumptive. (Id. at 32-33.) 28 Ortiz objects to the Magistrate Judge’s factual finding that Ortiz was sentenced to a 1 presumptive term of 20 years and to the Magistrate Judge’s legal conclusion that he failed 2 to show that counsel was ineffective. (Doc. 23, pp. 2-10.) 3 The Court concludes that the Magistrate Judge erred in finding that the trial court 4 sentenced Ortiz to a presumptive 20-year sentence, but agrees with the Magistrate Judge 5 that Ortiz’s counsel’s conduct did not fall below an objective standard of reasonableness. 6 i. Ortiz was Sentenced to the Maximum Term of Twenty Years 7 In the R&R, the Magistrate Judge concluded Ortiz was sentenced to the presumptive 8 term of 20 years pursuant to A.R.S. § 13-704(E). Ortiz denies that he was sentenced 9 pursuant to A.R.S. § 13-704(E) and argues that he received the maximum sentence, not a 10 presumptive sentence. (Doc. 23, pp. 2-5.) The State does not dispute Ortiz’s factual 11 assertions. The record supports Ortiz’s objection, which the Court will sustain. 12 The sentencing court found that Ortiz’s assault convictions were Class 3 felonies 13 and his two prior historical convictions included a Class 3 and a Class 5 felony. (Doc. 13- 14 6, pp. 17-18, 21; Doc. 11, pp. 25-30.) Ortiz could not legally have been sentenced under 15 A.R.S. § 13-704(E), which sets a presumptive sentence of 20 years, because that statute 16 applies only to a person who has two historical prior convictions that are both Class 1, 2, 17 or 3 felonies. Ortiz only had one such prior felony. 18 The sentencing minute entry cites A.R.S. §§ 13-703(J), 13-704 and 13-708(B), as 19 support for the court’s imposition of the “maximum term of TWENTY (20) YEARS” for 20 each aggravated assault conviction. (Doc. 11, p. 25-30 (emphasis added).) Section 13- 21 703(J) applies to category 3 repetitive offenders6 and sets a presumptive sentence of 11.25 22 years and a maximum sentence of 20 years. Section 13-704, which applies to dangerous 23 offenders, allows the sentencing court to mitigate or aggravate the presumptive term 24 pursuant to A.R.S. § 13-701, which in turn provides for aggravation of a sentence upon the 25 court finding the defendant was previously convicted of a felony within the ten years 26 6 Ortiz was a category 3 repetitive offender because he was at least 18 years of age, 27 had “been tried as an adult and stands convicted of a felony and has two or more historical prior felony convictions.” A.R.S. § 13-703(C). All citations to the Arizona Revised Statutes 28 are to the statutes in effect at the time of Ortiz’s April 2013 sentencing. 1 immediately preceding the date of the offense. Section 13-708(B) requires a court to 2 impose the maximum sentence when a defendant convicted of a dangerous offense 3 committed that offense while on release.7 The Minute Entry contains two bases for 4 imposition of the maximum sentence of 20 years: (1) the court’s finding “defendant’s 5 criminal history” as an aggravating circumstance, and (2) the court’s finding that Ortiz was 6 on parole at the time of the instant offense, a serious offense. (Doc. 11, pp. 25-26.) Based 7 on the foregoing, the Court agrees with Ortiz that he was sentenced to the maximum term 8 of 20 years for each aggravated assault conviction. 9 ii. Claim 4(b) is Without Merit 10 Ortiz objects to the Magistrate Judge’s conclusion that counsel was not deficient for 11 failing to argue that a jury was required to find that he was on release before the court could 12 impose the maximum 20-year sentence. He asserts that the Arizona Court of Appeals’ 13 reliance on State v. Large, 234 Ariz. 274 (App. 2014), and Alleyne v. United States, 570 14 U.S. 99 (2013), in rejecting his argument was erroneous because those cases established 15 that the jury must make findings that raise the mandatory minimum sentence. (Doc. 23, p. 16 7-10.) Ortiz argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. 17 Washington, 542 U.S. 296 (2004), which were in effect at the time of his sentencing, clearly 18 established that the jury was required to make the “on release” finding because that finding 19 raised the maximum sentence the court could, and did, impose. 20 In Apprendi, the Supreme Court held that “other than the fact of a prior conviction, 21 any fact that increases the penalty for a crime beyond the prescribed statutory maximum 22 7 Section 13-708(B) provides: 23 A person who is convicted of a dangerous offense that is committed while the person is on release or has escaped from confinement for a conviction of 24 a serious offense as defined in § 13-706, an offense resulting in serious physical injury or an offense involving the use or exhibition of a deadly 25 weapon or dangerous instrument shall be sentenced to the maximum sentence authorized under this chapter and is not eligible for suspension or 26 commutation or release on any basis until the sentence imposed is served. If the court finds that at least two substantial aggravating circumstances listed 27 in § 13-701, subsection D apply, the court may increase the maximum sentence authorized under this chapter by up to twenty-five percent. 28 1 must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 2 (emphasis added). In Blakely, the Supreme Court explained that “the ‘statutory maximum’ 3 for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of 4 the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303. In 5 Arizona, the “statutory maximum” for purposes of Blakley is the presumptive, 6 unaggravated sentence. State v. Martinez, 210 Ariz. 578, 583-84 (2005). 7 Apprendi and Blakely do not establish that Ortiz’s counsel was deficient. For one 8 thing, to the extent that the sentencing court imposed the maximum sentence based on 9 Ortiz’s prior criminal history, the cases are not applicable. Apprendi excepted from the 10 requirement of factual finding by the jury, “the fact of a prior conviction.” 530 U.S. at 490. 11 Thus, the sentencing court permissibly relied on Ortiz’s “criminal history,” to impose the 12 maximum sentence. A.R.S. §§ 13-704, 13-701. There was no constitutional error or 13 prejudice to Ortiz. Ortiz does not argue otherwise. 14 Even if the sentencing court imposed the maximum sentence based on its own 15 finding that Ortiz was on parole at the time of the offense, Apprendi and Blakely do not 16 demonstrate that Ortiz’s counsel was deficient in failing to argue that a jury finding was 17 necessary. This is because the then-existing law permitted the court to make the “on 18 release” finding. In Harris v. United States, 536 U.S. 548 (2002), the Supreme Court held 19 that “[j]udicial factfinding in the course of selecting a sentence within the authorized range 20 does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth 21 and Sixth Amendments.” Id. at 558. The Harris court concluded: “The Judge may impose 22 the minimum, the maximum, or any other sentence within the range without seeking further 23 authorization from those juries—and without contradicting Apprendi.” Id. at 565. 24 Following this precedent, the Arizona Supreme Court held that “facts that limit a judge’s 25 sentencing discretion within the prescribed statutory range, such as those that compel 26 imposition of a mandatory minimum sentence, may be found by the judge rather than 27 juries.” Martinez, 210 Ariz. at 582 (citing Harris, 536 U.S. at 567) (emphasis in original). 28 In light of his prior convictions, Ortiz’s prescribed statutory range included a presumptive 1 sentence of 11.25 years, a maximum sentence of 20 years, and an aggravated sentence of 2 25 years. See A.R.S § 13-703(J). The trial court sentenced Ortiz within this range, in 3 accordance with then-existing law. Because the “on release” finding did not increase the 4 statutory maximum to which Ortiz was otherwise exposed based on his prior convictions, 5 the court’s finding did not offend Apprendi. 6 Although Harris has now been overruled, Ortiz fails to show that counsel was 7 ineffective in failing to raise an argument in contravention of binding precedent in effect 8 at that time. See Baumann v. United States, 692 F.2d 565, 572 (1982) (“The failure to raise 9 a meritless legal argument does not constitute ineffective assistance of counsel.”); Coley v. 10 Bagley, 7006 F.3d 741, 752 (6th Cir. 2013) (“Omitting meritless arguments is neither 11 professionally unreasonable nor prejudicial.”). Accordingly, the Court will dismiss claim 12 4(b). 13 2. Claim 4(a) is Procedurally Defaulted 14 The Magistrate Judge recommends that claim 4(a) be dismissed as procedurally 15 defaulted. (Doc. 22, p. 16.) In a sparse objection, Ortiz asserts that he raised this claim, that 16 it is sufficiently intertwined with the other claims, and that Martinez should excuse the 17 default. (Doc. 23, p. 11.) Ortiz fails to show that his claim is exhausted or that his failure 18 to exhaust should be excused. Moreover, even if Ortiz had exhausted the claim, the Court 19 would conclude it was without merit. Claim 4(a) is essentially the same claim as claim 20 4(b), which the Court considered and rejected in Section II(D)(1) above. Claim 4(a) would 21 fail on the merits for the same reasons. Accordingly, the Court will adopt the Magistrate 22 Judge’s recommendation and dismiss claim 4(a). 23 3. Claims 4(c) and 4(d) are Non-Cognizable 24 The Magistrate Judge recommends dismissing claims 4(c) and 4(d) as non- 25 cognizable. (Doc. 22, pp. 11, 13.) Neither party objects to this conclusion although Ortiz 26 asserts that these claims are “relevant” to other claims. (Doc. 23, p. 11.) Accordingly, the 27 Court will adopt the recommendation and dismiss claims 4(c) and 4(d). See Thomas, 474 28 U.S. at 149; see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 1 II. Denial of Certificate of Appealability 2 Before Petitioner can appeal this Court’s judgment, a certificate of appealability || (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the Rules Governing Section 2254 Cases. “The district court must issue or deny a certificate 5 || of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the 6|| Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 7\| issue only when the petitioner “has made a substantial showing of the denial of a 8 || constitutional right.” The court must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner “must 10 || demonstrate that reasonable jurists would find the district court’s assessment of the 11 || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural rulings, a COA will issue only if reasonable jurists could debate whether 13 || the petition states a valid claim of the denial of a constitutional right and whether the court’s procedural ruling was correct. Jd. Applying these standards, the Court concludes that a 15 || certificate should not issue, as the resolution of the petition is not debatable among 16 || reasonable jurists. 17 III. Conclusion 18 For the foregoing reasons, 19 IT IS ORDERED that the Report and Recommendation (Doc. 22) is ADOPTED 20 || IN PART, as set forth in this order. 21 IT IS FURTHER ORDERED that Ortiz’s Petition for Wirt of Habeas Corpus 22 || (Doc. 1) is DENIED AND DISMISSED with prejudice. The Clerk of the Court shall enter 23 || judgment accordingly and close the file in this matter. 24 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 25 IT IS FURTHER ORDERED that the “Motion in Arrest of Judgment and Motion 26 || to Request the Court Rule on a Previous Motion” (Doc. 26) is DENIED as moot. 27 Dated this 4th day of March, 2021. 28 □□□ □ Honorate seal 73 ‘3. United States District Judge