Daniel Rodriguez v. Stephen Morris ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 27 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ALEXANDER RODRIGUEZ, No. 21-16024
Petitioner-Appellant, D.C. No. 2:19-cv-04957-GMS
v.
MEMORANDUM*
STEPHEN MORRIS; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Argued and Submitted March 8, 2022
Phoenix, Arizona
Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges.
Daniel A. Rodriguez appeals the district court’s denial of his petition for a
writ of habeas corpus filed under 28 U.S.C. § 2254. The narrow certified issue on
appeal is whether Rodriguez’s ineffective assistance of appellate counsel (“IAAC”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claim qualifies as cause to excuse the procedural default of his prosecutorial
misconduct claim.1 We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We
affirm.
Rodriguez was convicted by a jury in Arizona state court of various felonies
in connection with his role in two shootings during a dispute with his girlfriend.
On direct appeal, his counsel declined to raise the issue of prosecutorial
misconduct in favor of a Fourth Amendment issue. After the appeal was
unsuccessful, Rodriguez filed a habeas petition in state court raising ineffective
assistance of trial counsel, trial judge abuse of discretion, prosecutorial
misconduct, and IAAC. The state trial court denied habeas relief, in part because
Rodriguez had waived his prosecutorial misconduct claim by failing to raise it on
direct appeal and because any deficient performance on the part of defense counsel
did not prejudice Rodriguez. The Arizona Court of Appeals granted review but
denied relief in a short summary order, and the Arizona Supreme Court denied
review altogether.
Under Arizona law, the failure to raise an issue that could have been raised
on direct appeal is a procedural bar to habeas review on the merits. State v. Petty,
1
Rodriguez’s Opening Brief presents uncertified issues outside the scope of
the district court’s Certificate of Appealability (“COA”). We decline to expand the
COA to reach those issues. See 28 U.S.C. § 2253(c)(2).
2
238 P.3d 637, 640 (Ariz. Ct. App. 2010) (citing Ariz. R. Crim. P. 32.2(a)). Here,
then, Rodriguez’s failure to raise prosecutorial misconduct on direct appeal means
the issue was procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722,
729–30 (1991); Lee v. Davis, 328 F.3d 896, 899–900 (7th Cir. 2003). Rodriguez is
therefore only entitled to federal habeas review on the merits of his prosecutorial
misconduct claim if he shows that the procedural default is excused by cause and
prejudice. See Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017).
Rodriguez argues that his IAAC claim based on appellate counsel’s failure
to raise prosecutorial misconduct on direct appeal constitutes cause to excuse the
default of the prosecutorial misconduct claim. See Murray v. Carrier, 477 U.S.
478, 488 (1986). We analyze Rodriguez’s IAAC claim in the cause-and-prejudice
context de novo.2 Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016).
2
We need not reach the question of whether Rodriguez’s IAAC claim
establishes an independent substantive basis for habeas relief because that question
is outside the scope of the COA. In any event, because we conclude that appellate
counsel’s performance was not constitutionally ineffective, it follows that we
would not disturb the state habeas court’s adjudication of that claim on the merits.
See 28 U.S.C. § 2254(d) (barring relitigation of any claim “adjudicated on the
merits” in state court unless the decision was contrary to or involved an
unreasonable application of clearly established federal law, or was based on an
unreasonable determination of the facts in light of the evidence presented);
Harrington v. Richter, 562 U.S. 86, 99 (2011) (a claim not dismissed for
procedural reasons is presumed to be decided on the merits).
3
To establish cause, Rodriguez must show that he was deprived of his
constitutional right to effective counsel in violation of the Sixth Amendment. Id.To do that, Rodriguez must first have presented IAAC as an independent claim in
state court. Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000). Because he raised
the claim in his state habeas petition, he satisfies that threshold inquiry. He next
must establish that his appellate counsel’s performance was ineffective under
Strickland v. Washington, 466 U.S. 668 (1984). Counsel is ineffective under
Strickland if the lawyer’s performance was objectively unreasonable and “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. The “mere fact that counsel
failed to recognize the factual or legal basis for a claim, or failed to raise the claim
despite recognizing it, does not constitute cause for a procedural default.” Carrier,
477 U.S. at 486; see also Moorman v. Ryan, 628 F.3d 1102, 1106–07 (9th Cir.
2010).
Because we conclude that Rodriguez was not prejudiced by counsel’s failure
to raise prosecutorial misconduct on direct appeal, we need not decide whether
counsel’s performance was deficient. See Jackson v. Calderon, 211 F.3d 1148,
1155 n.3 (9th Cir. 2000). We conclude that Rodriguez was not prejudiced because
there is not a “reasonable probability” that the outcome of his direct appeal would
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have been different had counsel raised prosecutorial misconduct. Cf. Strickland,
466 U.S. at 694.
To warrant reversal for prosecutorial misconduct under Arizona law, “the
conduct must have been so pronounced and persistent that it permeated the entire
trial and probably affected the outcome.” State v. Bolton, 896 P.2d 830, 847 (Ariz.
1995). Arizona courts consider whether the prosecutor’s actions were “reasonably
likely to have affected the jury’s verdict, thereby denying [the] defendant a fair
trial.” Id. (citation omitted). Courts review the “cumulative misconduct” to decide
whether the “total effect” rendered the trial unfair. State v. Hulsey, 408 P.3d 408,
429 (Ariz. 2018).
We are not convinced that there is a reasonable probability that an Arizona
court would have ordered a new trial based on the prosecutor’s conduct here. First,
the state habeas court expressly rejected Rodriguez’s claim of ineffective
assistance of trial counsel for failing to object to certain misconduct, finding that
any deficient performance did not prejudice Rodriguez’s defense or render
different trial results than would have been achieved through competent
performance. If an Arizona court was unwilling to order a new trial based on trial
counsel’s failure to object to misconduct, we see no reason to conclude that the
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same court would have done so based on appellate counsel’s failure to raise the
same misconduct on appeal.
Second, much of the alleged misconduct was waived for lack of
contemporaneous objection at trial such that it could only be overcome on appeal
by a showing of fundamental error. State v. Hughes, 969 P.2d 1184, 1197 (Ariz.
1998) (en banc). We cannot conclude that the waived misconduct constituted
fundamental error. See id.Third, we do not conclude that an Arizona court would have found that the
instances of misconduct were “so pronounced and persistent” to have “permeated
the entire trial and probably affected the outcome.” Bolton, 896 P.2d at 847. The
most serious allegation in our view is that the prosecutor implied that the
threatening text messages were recovered on Rodriguez’s phone, when in fact they
were not. Although we acknowledge that the prosecutor mischaracterized the
source of the threatening text messages to corroborate other witness testimony, the
record contains other evidence linking Rodriguez to those messages and
connecting him to the shootings. In our view, the evidence regarding the text
messages was cumulative of other properly presented evidence. Our conclusion is
bolstered by the state habeas court’s conclusion that any deficient performance by
trial counsel would not have rendered different results at trial. Even accepting—as
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the district court below did—that the prosecutor engaged in some “instances of
misconduct or near misconduct, altogether it was not so prolonged or pronounced
that it affected the fairness of trial.” Hulsey, 408 P.3d at 429–30.
In summary, Rodriguez has not shown that his appellate counsel was
constitutionally ineffective under Strickland. The district court therefore properly
held that Rodriguez did not establish cause and prejudice necessary to excuse the
procedural default of the prosecutorial misconduct claim. That claim is therefore
not entitled to federal habeas review on the merits.
AFFIRMED.
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