Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00131-MHM Document 33 Filed 09/06/2005 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Randy Scott Bailey, Petitioner, vs. Dora Schriro, et. al., Respondents.

) ) ) ) ) ) ) ) ) ) ) )

No. Civ. 04-0131-PHX-MHM (MS) Report and Recommendation

On January 21, 2004, while incarcerated in the Arizona State Prison Complex in Florence, Arizona, Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1]. Respondents' Response was lodged on August 31, 2004 and filed on September 20, 2004. [Doc. 21]. Petitioner's Reply was received on February 1, 2005. [Doc. 28]. Petitioner's Appendix of Exhibits was received on February 23, 2005. [Docs. 28, 30]. The Court now reports and recommends as follows: I. Background Petitioner was convicted by a jury of six counts of armed robbery. [Doc. 21, Exh. A, Reporter's Transcript ("RT") 10/31/94 at 2-6]. The charges arose out of two separate incidents: a robbery of a Bank of America branch located in Ahwatukee, Arizona and a robbery of the First Interstate Bank in Scottsdale, Arizona. The two

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

cases were consolidated for trial in the Maricopa County Superior Court. [Doc. 21, Exh. A, at 000031, 000034, 000041]. A. Ahwatukee Robbery The facts adduced at trial revealed that, during the Ahwatukee robbery, the suspect entered the bank at a approximately 10:40 a.m. on November 12, 1993. [Doc. 21a, Exh. C, RT 10/19/94 at 17-124]. The suspect carried a small black gun in his right hand, with his finger positioned along-side the barrel. [Id.] He was described as a Caucasian male, approximately six feet tall, with sandy blonde hair and eyebrows. [Id.]. He wore a wolf mask, white gloves, and a dark sweatshirt. [Id.]. The suspect told the tellers, "hundreds, fifties, twenties and no dye packs and no one will get hurt." [Id. at 20-22, 43-45, 57]. When one of the tellers reached for an alarm button, he said "you don't want to do that." [Id. at 20]. After the tellers gave money to the suspect, he sorted through the money with the barrel of his gun, left the small bills on the counter, placed approximately $11,500 into a red athletic bag and fled on foot. [Id.]. As the suspect left the bank, the owner of a nearby sandwich shop observed the suspect wearing the wolf mask and carrying a red bag. [Id. at 84-107]. The owner and two others chased the suspect behind the shopping center, through a wash and over the fence of an apartment complex. [Id.]. A hotel courtesy van driver who observed the chase turned into the apartment complex parking lot as the suspect jumped the fence. [Id. at 124-131]. The suspect, who was no longer wearing the wolf mask, walked toward the van in view of the driver. [Id.]. The driver

subsequently picked Petitioner out of a photo-line up and identified him at trial as the man running away from the bank being chased by people dressed in uniform. [Id. at 131-157]. B. Scottsdale Robbery The Scottsdale robbery occurred at approximately 11:30 a.m. on February 8, 1994. [Id. at 108-123; Doc. 21a, Exh. C, RT 10/20/94 at 26-39]. The suspect was

-2Case 2:04-cv-00131-MHM Document 33 Filed 09/06/2005 Page 2 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

approximately six feet tall, wore a black ski mask, and carried a small black gun with his index finger positioned alongside the barrel. [Id.]. Upon entering the bank, the suspect motioned one teller to remain quiet and told another teller to place large bills on the counter. [Id.]. He told the tellers "no dye packs and no one will get hurt." [Id. at 110]. The suspect placed about $5000 in a bag and exited the bank. [Id.]. Several bystanders observed the suspect sprinting from the bank. One

bystander, Peggy Boosalis, said she saw Petitioner exit the bank wearing a red poncho and a ski mask. [Id. at 3-25]. He reportedly got on a motorcycle, removed the ski mask, put on a black motorcycle helmet and drove off. [Id.]. A second bystander, Alex Beck, said he saw Petitioner run through the parking lot wearing a ski mask. [Doc. 21a, Exh. C, RT 10/19/94 at 157-182]. Beck further stated that, while Petitioner was approaching his motorcycle, he took off the ski mask and put on a red poncho and motorcycle helmet. [Id.]. Beck followed him out of the parking lot. [Id.]. He saw Petitioner turn into a nearby shopping plaza, and then saw two men hurriedly placing something into a white trailer hitched to a Ford Bronco. [Id.]. Beck recorded the license plate number on the trailer, which was later determined to be registered to Petitioner. Petitioner. [Id.]. Following the Scottsdale robbery, Petitioner was put under police surveillance. [Doc. 21a, Exh. C, RT 10/26/94 at 139-148]. On March 25, 1994, police executed a search warrant at Petitioner's residence. [Exh C., RT 10/20/94 at 112-114]. They seized a black motorcycle helmet, two red ponchos, and a white utility trailer. [Id.]. C. Procedural Background Petitioner was convicted of and sentenced for both robberies. [Doc. 21a, Exh. C, RT 10/31/94 at 2-6; RT 11/29/94 at 18-19]. Petitioner filed a Notice of Appeal from the judgment and sentences and an appellate brief, arguing that the prosecutor committed a fundamental error by referring to non-testifying witnesses during the redirect examination of one of the detectives involved in the case. [Doc. 21, Exh. A at [Id.]. Both Beck and Boosalis later identified

-3Case 2:04-cv-00131-MHM Document 33 Filed 09/06/2005 Page 3 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

000059; Doc. 21, Exh. B at 000024; Doc. 21b, Exh. D]. Petitioner sought to have counsel's brief withdrawn and to submit a supplemental brief, but his request was denied. The Court of Appeals denied relief, holding that any error was invited and harmless. [Doc. 21b, Exh. D.] Petitioner did not petition the Arizona Supreme Court for review of this holding, but did file a petition alleging that he should have been permitted to file a supplemental brief in the Court of Appeals. [Doc. 21b, Exh. N.]. The Arizona Supreme Court denied the petition. [Id.]. Petitioner filed several overlapping Petitions for post-conviction relief. The first of these, filed on April 24, 1995, enumerated various claims. [Doc. 21, Exh. A at 000065, 000082]. The trial court dismissed the petition, pursuant to Rule 32.2 of the Arizona Rules of Criminal Procedure, involving claims for violations of the Rules of Criminal procedure, improper joinder, prosecutorial misconduct, and double jeopardy. [Id.]. Petitioner's claim of ineffective assistance of trial counsel was dismissed for failure to establish a colorable claim evidencing prejudice. [Id. at 000109]. On April 9, 1996, Petitioner filed a Petition for Review by the Arizona Court of Appeals. [Id. at 000118]. He raised seven issues: (1) whether a due process violation resulted because he was given insufficient records to pursue an appeal, (2) whether his right to due process was violated as a result of various violations of the Arizona Rules of Criminal Procedure, (3) whether a due process violation resulted from suppression of evidence in violation of Rule 15.1 of the Arizona Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963), (4) whether his right to confrontation was violated, (5) whether the court erroneously permitted a prosecutorial reference to a tape recording during closing argument, (6) whether the trial court erred in not holding an evidentiary hearing "to explore the Petitioner's Fifth Amendment double jeopardy claim," and (7) whether the trial court erred in not holding an evidentiary hearing regarding Petitioner's ineffective assistance of counsel claim. [Doc. 21, Exh. A, 000118].

-4Case 2:04-cv-00131-MHM Document 33 Filed 09/06/2005 Page 4 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Petitioner filed a second petition for post-conviction relief with the Superior Court on April 22, 1996, and a supplemental petition on November 7, 1996. [Doc. 21,

Exh. A, 000122, Petition at 1-12; 000143, Petition at 1-27]. He alleged ineffective assistance of appellate counsel, a violation of his rights against double jeopardy, a violation of his rights under the confrontation clause, violations of the Arizona Rules of Criminal Procedure, prosecutorial misconduct and deprivation of access to the courts due to his poverty. [Id.]. The trial court found all of Petitioner's claims precluded under Rule 32.2, except for Petitioner's claim of ineffective assistance of appellate counsel. [Doc. 21, Exh. A, 109, 165]. The Court ordered further briefing on that issue. [Id.]. Petitioner filed an amended second petition for post-conviction relief on May 21, 1997 and a third petition on June 15, 1997. [Doc. 21, Exh. A at 000193]. He raised the same or similar issues previously raised, and further raised a claim of newly discovered evidence pertaining to financial documents seized from his residence. [Id.]. In a ruling dated December 4, 1997, the Court dismissed all of Petitioner's outstanding post-conviction claims. [Id. at 000216]. The Court held that Petitioner's claims were precluded or had previously been resolved, with the exception of Petitioner's claims of newly discovered evidence and perjury. The court found these claims not colorable. [Id. at 000216]. On January 23, 1998, Petitioner filed a Petition for Review by the Arizona Court of Appeals which alleged: ineffective assistance of counsel on appeal, violations of the Arizona Rules of Criminal Procedure, prosecutorial misconduct in closing arguments, admission of hearsay through fraud, and newly discovered evidence of perjury relating to the improper suppression of evidence resulting in the denial of a fair trial. [Doc. 21b, Exh. E]. The Arizona Court of Appeals consolidated all of Petitioner's outstanding petitions, and granted partial relief. [Doc. 21b, Exhs. F, G]. The Court upheld the trial court's ruling with respect to all of Petitioner's claims, except for the newly discovered evidence claim. [Doc. 21b, Exh. F]. The Court

-5Case 2:04-cv-00131-MHM Document 33 Filed 09/06/2005 Page 5 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

remanded the newly discovered evidence claim, finding that the trial court had a applied the wrong standard and directing the Court to assess Petitioner's claim in light of Brady. [Id.]. On remand, the trial court conducted an evidentiary hearing. The Court ruled that there was neither evidence of suppression or non-disclosure nor evidence of prejudice. [Doc. 21, Exh. A, 000255]. The Court further found that the evidence of guilt presented at trial was substantial, whereas the exculpatory value of the evidence in question was limited. [Id.]. The Court denied relief. [Id.]. On September 1, 2000, Petitioner filed a Petition for Review from the evidentiary hearing. [Doc. 21b, Exh. I]. The Arizona Court of Appeals summarily denied review on June 5, 2002. [Doc. 21b, Exh. J]. Petitioner filed a Petition with the Arizona Supreme Court on August 30, 2002. [Doc. 21b, Exh. K]. The Supreme Court summarily denied review on January 30, 2003. [Doc. 21b, Exh. L]. Petitioner filed his federal petition on January 21, 2004. [Doc. 1]. Petitioner asserts eleven grounds for relief. He alleges: ineffective assistance of trial and appellate counsel (grounds 1 and 5), violations of the right to confront witnesses (grounds 2 and 7), violations of the right to due process and a fair trial (grounds 3 and 10), improper prosecutorial vouching (ground 4), violation of the right to a speedy trial (ground 6), perjury (ground 8), violation of Brady (ground 9), and deprivation of equal access to the courts resulting from removal of law libraries by the Arizona Department of Corrections (ADOC) (ground 11). II. Exhaustion and Procedural Default No writ may be granted unless it appears that the applicant has exhausted the remedies available in state courts. 28 U.S.C. §2254(b)(1)(A). Under the exhaustion doctrine, a petitioner must present his claims to the state courts on direct appeal or through collateral proceedings before a federal court will consider a habeas corpus petition. Rose v. Lundy, 455 U.S. 509 (1982); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir. 1985). Specifically, exhaustion requires that a petitioner either fairly

-6Case 2:04-cv-00131-MHM Document 33 Filed 09/06/2005 Page 6 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

present his or her claims to the Arizona Court of Appeals, Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)(stating that "except in habeas petitions in capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them"), or show that no state remedies remain available. Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983) (citing Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). A petitioner must fairly present the "substance of federal claims to the state courts in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365-66 (1995). See also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 278 (1971); Casey v. Moore, 386 F.3d 896, 911 (9th Cir. 2004). A habeas court will not review a question of federal law if that question has been decided by a state court and the court's decision "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991); Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000). The state law ground may be substantive or procedural. Coleman, 501 U.S. at 729-30 (recognizing that the "independent and adequate state ground" doctrine bars federal habeas corpus review where a state court "declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement"). To be independent, "the state law basis for the decision must not be interwoven with federal law." LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). See also Stewart v. Smith, 536 U.S. 856, 860

(2002)(stating that "[I]f the state court's decision rested primarily on a ruling on the merits . . ., its decision would not be independent of federal law."). "To be deemed adequate, the state law ground for decision must be well-established and

-7-

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 7 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

consistently applied." Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003); see also Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999)("A state procedural rule constitutes an adequate bar to federal court review if it was 'firmly established and regularly followed' at the time it was applied by the state court")(quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). Moreover, "[A] federal claimant's procedural default precludes federal habeas review...only if the last state court rendering a judgment in the case rests its judgment on the procedural default." Harris v. Reed, 489 U.S. 255, 262 (1989). When a petitioner procedurally defaults his federal claims in state court "pursuant to an independent and adequate state rule," federal habeas review of the claims is barred unless the petitioner demonstrates cause for the default and actual prejudice from the alleged violation of federal law, or that failing to review the claims "will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In this case, Respondents contend that all of Petitioner's claims for relief, except his ninth claim, are procedurally defaulted. Specifically, Respondents contend that Petitioner's first, second, fifth, sixth, and tenth claims are procedurally defaulted because Petitioner failed to present them to the Arizona Supreme Court. Respondents assert that Petitioner's eleventh claim is procedurally defaulted because Petitioner did not present it on direct or collateral review. Respondents contend that claims three, four, seven and eight were found precluded in state court, and that consideration by this Court is therefore barred. The Court will consider each category of claims separately. A. Alleged Failure to Present Claims to the Arizona Supreme Court

(Grounds 1, 2, 5, 6, & 10) The Court finds meritless Respondents' contention that exhaustion in the Supreme Court of Arizona is a pre-requisite to obtaining habeas relief. In Swoopes,

-8-

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 8 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

196 F.3d at 1010, the Ninth Circuit established that non-capital Arizona state prisoners may exhaust their claims by fairly presenting them to the Arizona Court of Appeals;1 exhaustion in the Arizona Supreme Court is not required. Respondents acknowledge the holding of Swoopes, but contend that the United States Supreme Court's decision in Baldwin, 541 U.S. 27, "appears to overrule" Swoopes. [Doc. 21 at 19]. In so arguing, Respondents cite Baldwin for the proposition that a state habeas petitioner is required to present his claims "in each appropriate state court (including a state supreme court with powers of discretionary review)." [Id.]. Respondents' argument is unavailing for several reasons. First, the issue in Baldwin was not whether exhaustion in a state supreme court is always required.

1

Swoopes states, "in cases not carrying a life sentence or the death penalty, review need not be sought before the Arizona Supreme Court in order to exhaust state remedies. 196 F.3d at 1010 (emphasis added). However, Arizona law no longer requires that a life sentence case be appealed to the Arizona Supreme Court. Arizona Revised Statute ("A.R.S.")§12-120.21(A)(1); A.R.S. §13-4031. The only cases that must be appealed to the Arizona Supreme Court are "criminal actions involving crimes for which a sentence of death has actually been imposed." Id. The language in Swoopes which states that life sentence cases must be appealed to the Arizona Supreme Court derives from the language of the statutes before they were amended in 1989. See A.R.S. §12-120.21(A)(1)(1988), amended by Laws 1989, Ch. 58 § 1; A.R.S. §13-4031 (1988), amended by Laws 1989, Ch. 58, § 2. Before the amendments, the statutes excluded both death penalty and life imprisonment cases from Arizona Court of Appeals jurisdiction, making the Arizona Supreme Court the only court to which these cases could be appealed. Id. Swoopes apparently relies on these older statutes because the appeal at issue in that case was decided in 1987, before the amendments of the statutes. The review now available is discretionary in nature. Thus, such review is "unavailable" under Swoopes and O'Sullivan. Because Petitioner was convicted after the statutes were amended in 1989, Petitioner is only required to present his claims before the Arizona Court of Appeals, despite the fact that he was sentenced to life imprisonment. -9-

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 9 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The issue presented was instead whether a state supreme court with powers of discretionary review is required to read lower court opinions or other materials in order to discover federal claims. Baldwin, 541 U.S. at 32 ("We consequently hold that ordinarily a state prisoner does not "fairly present" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so"). The Court's parenthetical reference to "state supreme court[s] with powers of discretionary review" is therefore not dispositive. Moreover, O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), one of the two cases cited by the United States Supreme Court in connection with the Baldwin statement quoted by Respondents, was extensively examined by the Ninth Circuit in Swoopes. O'Sullivan held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. The Supreme Court determined that, under Illinois law, the availability of discretionary review in the Illinois Supreme Court required exhaustion to that court. O'Sullivan, 526 U.S. at 848. However, the O'Sullivan Court expressly limited its holding, stating: "there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available." O'Sullivan, 526 U.S. at 847848. In Swoopes, the Ninth Circuit determined that discretionary view in the Arizona Supreme Court was "unavailable" under O'Sullivan. Swoopes, 196 F.3d at 1010. As such, the Court held that exhaustion in Arizona ends at the Court of Appeals. Id. Just as discretionary review is unavailable in the Arizona Supreme Court under O'Sullivan, it is unavailable under Baldwin.

- 10 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 10 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Finally, subsequent to Baldwin, the Ninth Circuit reinforced Swoopes. In Castillo v. McFadden, 399 F.3d 993, 998 n. 3 (9th Cir.1999) the Court reiterated that the claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them. Castillo, 399 F.3d at 998 n. 3 (quoting Swoopes, 196 F.3d at 1010). Swoopes remains the law of this Circuit. For the foregoing reasons, the Court rejects Respondents' procedural default argument with respect to claims one, two, five, six and ten. B. Alleged Failure to Present Access to Courts Claim (Ground 11) The Court also disagrees with Respondents that Petitioner's eleventh ground for relief was never presented to the Arizona courts. Petitioner alleges in his eleventh ground for relief that the removal of law libraries by the Arizona Department of Corrections (ADOC) deprived him of equal access to the courts. [Doc. 1].

Petitioner challenged ADOC's policies on equal access grounds by seeking injunctive relief in a special action petition prior to the date the libraries were removed. [Doc. 30, Exh. HHH]. After the law libraries were removed, he sought appointment of counsel. [Id.]2 Petitioner then challenged the removal of law

libraries in his "Petition for Review from Post-Conviction Relief Evidentiary Hearing After Remand in PCR," dated August, 31, 2000. [Doc. 21b, Exh. I, Petition page 13].3 Petitioner asserted that he was unable to fairly develop his claims because

2

Both the Special Action Petition and the Motion for Appointment of counsel are inexplicably absent from the record submitted by Respondents, even though the documents submitted by Petitioner show proof of filing. Petitioner has also submitted a document entitled "Appellant's Opening Brief on Appeal" dated July 16, 1999, in which he challenged the law library policy. [Doc. 30, Exh. II]. Unfortunately, Petitioner's copy does not contain a stamp evidencing that the document was received by the Court of Appeals. As noted previously, Respondents' copy of the

3

- 11 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 11 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ADOC policies impeded his ability to develop, research, and review his legal claims. [Doc. 1 at 8-G; Pet. for Review at 13]. The state courts therefore had an opportunity to pass upon Petitioner's claim. C. Procedurally Defaulted Claims The Court agrees with Respondents that consideration of Petitioner's third, fourth, and seventh claims is fully precluded. With respect to claims eight and one, the Court finds the claims to be partially precluded. 1. Fully Precluded Claims (Grounds 3, 4, 7) Ground three of Petitioner's federal habeas petition alleges that his right to due process and a fair trial was violated when the prosecutor made reference during closing arguments to a tape stricken from evidence. [Doc. 1]. He alleges that the tape, which contained inculpatory remarks between a jail informant and Petitioner's brother, was so damaging that defense counsel moved for a mistrial based on its introduction. [Id.] The motion for a mistrial was withdrawn upon agreement that the tape be stricken from evidence. [Id.] Petitioner claims that, despite this agreement, the prosecutor vouched for the credibility of a witness by alluding to the tape. [Id.] Petitioner raised this issue in his first, second, and amended second petitions for post-conviction relief, and subsequently filed petitions for review. [See Doc. 21, Exh. A, 000082 at 35-38, 000122 at 9-11, 000193 at 18-20, 000118 at 15-16; Doc. 21b, Exh. E at 8-11; Doc. 21b, Exh. K, at 11]. In ruling on Petitioner's petitions for post conviction relief, the Superior Court found the claim to be precluded pursuant to Rule 32.2 of the Arizona Rules of Criminal Procedure as being raisable or waived on appeal. [Doc. 21, Exh. A at 000109, 165, 216]. The Arizona Court of Appeals

record contains no reference to the special action petition or an appeal therefrom. If the brief was actually presented to the Court of Appeals, it further supports a finding that the claim was presented.

- 12 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 12 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

affirmed as to this claim, adopting and incorporating the reasoning of the Superior Court. [Doc. 21b, Exh. F; Doc. 32]. The Arizona Supreme Court also denied review. [Doc. 21b, Exh. L]. Ground four alleges that the prosecutor engaged in impermissible vouching during closing arguments. This argument was raised in Petitioner's Second Petition for Post-Conviction Relief and Amended Petition for Post-Conviction Relief, as well as in a Petition for Review filed with the Arizona Court of Appeals. [Doc. 21, Exh. A 000122 at 9-11, 000193 at 18-20; Doc. 21b, Exh. E at 8-11]. As with ground three, the Superior Court found the issue precluded pursuant to Rule 32.2 and the Court of Appeals adopted the Superior Court's reasoning. [Doc. 21, Exh. A at 000109, 165, 216; Exh. F; Doc. 32]. In ground seven, Petitioner claims he was denied the right to confront witnesses when Detective Bill Maloney testified about the total income Petitioner derived from selling wood carvings based on the hearsay statements of a third party. [Doc. 1 at 8C]. This claim was presented to the Superior Court in Petitioner's first and second petitions for post-conviction relief. [Doc. 21, Exh. A, 000082 at 9, 38-47, 000122 at 5-6, 000193 at 18; Doc. 21b Exh. E at 12]. It was presented to the Arizona Court of Appeals in Petitioner's Second Petition for Review. [Doc. 21b, Exh. E at 11-13]. The claim was found precluded pursuant to Rule 32.2 by the Superior Court and the Superior Court's decision was upheld by the Court of Appeals. [Doc. 21, Exh. A at 000109, 165; Exh. F; Doc. 32]. Because the state courts held that Petitioner's failure to comply with a state procedural rule precluded consideration of the foregoing claims, review by this Court is barred if the state court decisions rested on independent and adequate state grounds. Coleman, 501 U.S. at 729; Park, 202 F.3d at 1151. Here, the Superior Court decision, and the Court of Appeals affirmance of the decision, rested on

- 13 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 13 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Arizona Rule of Criminal Procedure Rule 32.2(a)(3). This rule precludes postconviction relief for any claim that could have been raised in a previous collateral proceeding or on direct review, except under limited circumstances. As the trial Court found, Petitioner's claims do not fall into those exceptional categories. The preclusive effect of Arizona Rule of Criminal Procedure Rule 32.2(a)(3) is both independent and adequate.4 Smith, 536 U.S. at 860 (finding Rule 32.2(a)(3) determinations independent of federal law); Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998)(finding Rule 32.2(a)(3) regularly followed and adequate); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992)(rejecting argument that Arizona's reliance on Rule 32.2(c) as a basis for procedural default was "so unpredictable and irregular that it does not provide an adequate ground" for disposal of claims). The proper application of the rule by the state courts in this case therefore precludes review by this Court absent a showing of cause and prejudice or a miscarriage of justice. 2. Partially Precluded Claims (Grounds 8, 1) a. Ground 8 Petitioner's eighth ground for relief alleges that Detective Maloney committed perjury and suppressed evidence, resulting in a denial of Petitioner's due process rights. Respondents assert that the trial court found this claim precluded pursuant to Rule 32.2, and that this Court is barred from reviewing the claim. The record reflects that the Court found the claim only partially precluded. The Superior Court found Petitioner's perjury claim precluded under Rule 32.2 only to the extent Petitioner relied on documents that were previously available to

4

In Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005), the Ninth Circuit recognized that preclusion may not always be clear under Rule 32.2(a)(3) in cases of technical exhaustion and procedural default. However, Cassett did not involve an actual finding of preclusion by the state court. Here, the Court clearly found preclusion.

- 14 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 14 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

him. To the extent Petitioner's claim was based on newly discovered evidence, the Court found the claim not colorable. [Doc. 21, Exh. A at 000216]. The Court of Appeals reversed and remanded for further consideration of Petitioner's claims that were predicated on newly discovered evidence. [Doc. 21b, Exh. F; Doc. 32]. After an evidentiary hearing, the Superior Court denied Petitioner's claim on the merits. [Doc. 21, Exh. A, 000255]. In this ruling, the Court considered Officer Maloney's trial testimony in light of the alleged newly discovered evidence. [Id.]. Both the Court of Appeals and the Supreme Court summarily denied review. This Court will not review that part of Petitioner's claim that was found precluded pursuant to Rule 32.2. That portion of the state court decision rests on an adequate and independent state ground and is barred from consideration. Coleman, 501 U.S. at 729; Park, 202 F.3d at 1151. However, to the extent Petitioner's claim is intertwined with his Brady claim, the state court's rulings are reviewable. b. Ground 1 In his first claim for relief, Petitioner puts forth a litany of reasons why his trial counsel was ineffective. The Court finds that of the several of the examples of alleged deficient performance discussed by Petitioner in his habeas petition, only the arguments raised in Petitioner's first petition for post-conviction relief were fairly presented and considered in state court.5 Petitioner's remaining allegations were either found precluded pursuant to Rule 32.2, or were never fairly presented. To the extent the claims were precluded, they are barred from consideration in this Court unless Petitioner makes a showing of cause and prejudice or a miscarriage of justice. Coleman, 501 U.S. at 729; Park, 202 F.3d at 1151. To the extent the claims

5

The substance of these claims is discussed separately below.

- 15 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 15 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

were not fairly presented, they are procedurally defaulted because the time for bringing the claims in state court has elapsed. See Ariz. R. Crim. P. Rule 32.4(a).6 D. Cause, Prejudice, and Miscarriage of Justice For the foregoing reasons, Petitioner's third, fourth, and seventh claims and portions of his first and eighth claims are procedurally defaulted. Federal habeas review of the merits of these procedurally defaulted claims is barred unless Petitioner can show cause for the procedural default and actual prejudice, or that failure to consider his claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003). "'Cause' is a legitimate excuse for the default; 'prejudice' is actual harm resulting from the alleged constitutional violation." Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). If the petitioner fails to establish cause for his procedural default, the court need not consider whether petitioner has shown actual prejudice resulting from the constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). To show a fundamental miscarriage of justice, a petitioner must make the extraordinary showing that the alleged constitutional violation probably resulted in the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 321 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986). The circumstances constituting a fundamental

miscarriage of justice apply in only a "narrow class of cases." Schlup, 513 U.S. at 321. To establish actual innocence, the petitioner must show that considering all the evidence, "it is more likely than not that no reasonable juror would have convicted him." Id. at 327-28.

6

Petitioner's claims would also likely be precluded pursuant to Rule 32.2(a)(3), as were the other claims he failed to raise in his initial postconviction relief petition. However, in light of the Ninth Circuit's recent ruling in Cassett, 406 F.3d 614, this Court places only secondary reliance on rule 32.2(a)(3).

- 16 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 16 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Petitioner has not put forth any arguments sufficient to support a finding of cause or prejudice that would excuse his default with respect to the precluded claims. The only arguments he makes that can be construed as providing potential grounds for cause and prejudice are his assertions that he lacked access to a lawyer and a law library while preparing his petitions and that his appellate counsel failed to raise sufficient issues on direct appeal. Petitioner's claim that he lacked access to a lawyer or law library while preparing his petitions does not establish cause. The claims found precluded in the trial court were precluded because Petitioner failed to raise them either on direct appeal or in his initial post-conviction petition. Petitioner had the assistance of counsel on direct appeal. Further, the Arizona Department of Corrections did not remove law libraries until August 4, 1997, after Petitioner had filed multiple post-conviction relief petitions. [Doc. 30, Exh. AAA]. Moreover, Petitioner's pro se status does not amount to cause sufficient to set aside a procedural default. Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 908-09 (9th Cir. 1986). Similarly, cause and prejudice are not established by Petitioner's assertion that his appellate counsel should have identified and presented more claims. Although constitutionally ineffective assistance of counsel can constitute cause for a procedural default, "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." Murray, 477 U.S. at 486. Ordinarily, a prisoner must establish that counsel's assistance was so ineffective that it fell below constitutional standards or show that an objective factor external to the defense impeded counsel's ability to comply with the state procedural rule. Id. The record does not support such a conclusion here. For the reasons set forth below in connection with the Court's discussion of Petitioner's ineffective assistance of

- 17 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 17 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

appellate counsel claim, the Court finds that counsel was not constitutionally ineffective. The Court also finds no impediment to raising the issues Petitioner now alleges should have been raised. Rather, the arguments Petitioner puts forth are the type of arguments found not to establish cause in Murray. The Court is additionally satisfied that any failure to consider Petitioner's claims will not amount to a fundamental miscarriage of justice. As discussed more

thoroughly below, Petitioner's convictions were supported by overwhelming evidence. Petitioner has not made the extraordinary showing that his case falls within the "narrow class of cases" in which an innocent person was probably convicted because of an alleged constitutional violation. Schlup, 513 U.S. at 321; Murray, 477 U.S. at 496. Federal habeas review of Petitioner's procedurally defaulted claims is barred. The Court therefore recommends that grounds three, four and seven and those portions of grounds one and eight that are procedurally defaulted be dismissed with prejudice. For the reasons previously stated, Petitioner's second, fifth, sixth, ninth, tenth, and portions of his first and eighth claims are properly before this Court. The Court will further address each of these claims. III. Analysis of Non­precluded Claims A. Standard of Review Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court shall not grant a petition for writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless (1) the decision by the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) the decision by the state court was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). A state court decision is "contrary

- 18 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 18 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to clearly established precedent" if the state court applies a rule that contradicts the governing law set forth by the Supreme Court or arrives at a different result than the Supreme Court in a case involving facts that are materially indistinguishable from a Supreme Court case. See Lockyer v. Andrade, 538 U.S. 63, 73 (2003). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 75 (quoting Williams v. Taylor, 529 U.S. 362, 406, 413 (2000)). State court rulings and factual findings are presumed to be correct where they are supported by the record. See 28 U.S.C. § 2254(e)(1). Petitioners "have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. Where the state court summarily denies relief without providing rationale, this court "review[s] the record to determine whether the state court's decision contravened, or unreasonably applied, clearly established law." Wilson v. Czerniak, 355 F.3d 1151, 1153-54 (9th Cir. 2004)(citing Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000)). See also Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002), amended at 311 F.3d 928 (9th Cir. 2002). In such cases, this Court does not independently decide the contested legal question, but instead determines whether §2254(d) mandates reversal of the state court decision. Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002); Delgado, 223 F.3d at 982. B. Petitioner's Claims 1. Ineffective Assistance of Counsel (grounds 1 and 5) a. Trial Counsel (Ground 1) In his first ground for relief, Petitioner argues that his trial counsel was ineffective. The following arguments in support of Petitioner's claim were raised in Petitioner's

- 19 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 19 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

first post-conviction relief petition and are now properly before this court7: counsel failed to adequately prepare and investigate petitioner's claims; counsel advised Petitioner to plead guilty; counsel failed to sufficiently confer with Petitioner about tactical issues and evidence; counsel failed to compel witnesses; counsel failed to adequately respond to the prosecutor's presentation of financial evidence; and counsel failed to make objections regarding the joinder of claims, Petitioner's speedy trial rights, and prosecutorial violations of the Arizona Rules of Criminal Procedure.8 The Superior Court held that none of Petitioner's grounds for ineffective assistance of counsel established a colorable claim for relief. More specifically, the Court found that Petitioner failed to establish prejudice resulting from counsel's errors. The Court of Appeals upheld the decision of the trial court. A federal Petitioner must satisfy a two-pronged test to prevail on an ineffective assistance of counsel challenge. He must show both that counsel's performance was constitutionally deficient, and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). To establish that counsel's

performance was deficient, a petitioner is required to show that, "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688. To establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Under the prejudice

7

The remainder of Petitioner's ground one claims are procedurally defaulted, as previously discussed. Although Petitioner cited only Arizona authority in support of his claim, he alleged in the argument portion of the Petition that his federal rights were violated.

8

- 20 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 20 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

prong, the question is whether "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Counsel's tactical decisions about how to present a defense are not subject to an ineffective assistance of counsel attack. Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001). See also Strickland, 466 U.S. at 697-90 (recognizing that mere criticism of trial tactics is not sufficient to support a charge of ineffective assistance of counsel); Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980) ("Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation"). Further, the Sixth Amendment does not require that counsel blindly abide by Petitioner's myriad diverse suggestions and instructions about the conduct of his case. United States v. Robinson, 913 F.2d 712, 716 (9th Cir. 1990). A petitioner also has no Sixth amendment right to determine what witnesses counsel must call at trial. Morris v. State of Cal., 966 F.2d 448, 456 (9th Cir. 1992). Similarly, although counsel's failure to object may give rise to an ineffective assistance of counsel challenge under some circumstances, an attorney's tactical decision not to object to evidence may also be reasonable. Dubria v. Smith, 224 F.3d 995, 1003 (9th Cir. 2000); United States v. Bosch, 914 F.2d 1239, 1244-47 (9th Cir. 1990). For example, an attorney's failure to object to inadmissible evidence is not necessarily ineffective. Morris, 966 F.2d at 456. Further, failure to make a meritless objection is neither unreasonable nor prejudicial. Jones v. Smith, 231 F.3d 1227, 1239, n. 8 (9th Cir. 2001); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985). A failure to investigate a meritorious defense may constitute ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Jennings v. Woodford, 290 F.3d 1006, 1019 (9th Cir. 2002); Hendricks v. Calderon, 70 F.3d 1032, 1036-37 (9th Cir. 1995); United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985). However,

- 21 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 21 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a habeas corpus petition must state facts which point to a real possibility of constitutional error. Id. The determination whether a failure to investigate prejudiced the petitioner depends on the likelihood that discovery of the evidence would have changed the outcome of a trial. Hill, 474 U.S. at 59. Defense counsel is not ineffective for failing to make futile objections or meritless motions. Boag, 769 F.2d at 1344; Jones, 231 F.3d at 1239, n. 8. Moreover, a petitioner's conclusory allegations that counsel should have done more to establish his case are insufficient to prove that counsel was ineffective. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (stating that a defendant cannot satisfy the Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense"). Here, Petitioner's post-conviction relief petition was replete with broad allegations that counsel failed to employ the tactics Petitioner would have chosen with respect to witnesses, evidence, and strategy. The trial court found that Petitioner failed to make any specific allegations which, if true, would have prejudiced the outcome of the case. [Doc. 21, Exh. A at 000109]. The Court specifically determined that Petitioner's claims relating to lack of preparation and failure to get to trial in a timely manner were unsupported by evidence of prejudice. [Id.] The Court finds that the decision by the state court was consistent with, not contrary to, clearly established Supreme Court precedent. Moreover, there is no indication that applying Supreme Court precedent to the facts of this case would warrant a different result than that reached by the state court. The record reflects that counsel actively pursued a theory of misidentification at trial. The evidence was countered with overwhelming evidence of guilt, including eyewitness testimony by several witnesses and corroborating evidence seized from Petitioner's residence.

- 22 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 22 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Petitioner's conclusory allegations that counsel could have done more are insufficient to establish prejudice. Additionally, Petitioner's claims primarily relate to tactical decisions of counsel which do not support a finding of ineffective assistance of counsel. For these reasons, the Court recommends that this habeas corpus claim be denied. b. Appellate Counsel (ground 5, 6, 10) In grounds five, six, and ten, Petitioner alleges that he was appointed appellate counsel who was unable or unwilling to protect his rights, and who committed errors which effectively deprived Petitioner of an appeal. Specifically, Petitioner claims that his appellate counsel admittedly erred by raising a single issue on appeal and then asking the Court of Appeals to allow Petitioner to file a supplement.9 Petitioner asserts that counsel should have obtained more documents and should have raised more claims.10

9

17 18 19 20 21 22 23 24 25 26 27 28
10

The issue raised was whether the prosecutor's comments about nontestifying witnesses resulted in fundamental error. See Procedural Background, supra, at 3-4; Doc. 21b, Exh. D.
In ground six, Petitioner claims that counsel should have raised a speedy trial claim. In the narrative portion of the claim, Petitioner elaborates on the reasons he believes a speedy trial violation occurred. The Court interprets this portion of Ground 6 as offering support for Petitioner's contention that he suffered prejudice. However, to the extent that Petitioner's claim can be construed as alleging an independent violation, the court finds that it is not cognizable. Petitioner alleges only that his speedy trial rights under Arizona law were violated. Federal courts conducting habeas review are limited to "deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Habeas relief does not extend to errors of state law. Id.; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991); 28 U.S.C. § 2254(a).

- 23 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 23 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The standard for assessing the performance of trial and appellate counsel is the same. Morrison v. Estelle, 981 F.2d 425, 427 (9th Cir. 1992); Miller v. Keeney, 882 F.2d 1428, 1433-34 (9th Cir. 1989). Petitioner must establish both that his attorney acted in an objectively unreasonable fashion, and that he was prejudiced thereby. Strickland, 466 U.S. at 687-88. In the appellate context, prejudice is established by demonstrating a reasonable probability that, but for his counsel's errors, the result of the appeal would have been different. Strickland, 466 U.S. at 694; Morrison, 981 F.2d at 427; Miller, 882 F.2d at 1433-34. The state trial court issued a summary ruling on this claim. Although the Court appears to have taken additional briefing on the issue, the claim was ultimately disposed of as part of a summary dismissal. [Doc. 21 at 000216]. The decision was summarily upheld on appeal. [Doc. 21b, Exh. F; Doc. 32]. Because the state courts did not provide rationale in ruling on this claim, this Court has reviewed the record to determine whether the state court's decision contravened, or unreasonably applied, clearly established law. Wilson, 355 F.3d at 1153-54 ; Luna, 306 F.3d at 960. The Court finds that §2254(d) does not mandate reversal of the state court decision. To prove prejudice, petitioner must demonstrate a reasonable probability that, but for his counsel's errors, the result of the appeal would have been different. Strickland, 466 U.S. at 694; Morrison, 981 F.2d at 427; Miller, 882 F.2d at 1433-34. Contrary to Petitioner's assertion that counsel admitted that he erred by raising only a single claim on Petitioner's behalf, the record reflects that counsel reviewed the record and attempted to present a claim he believed might have merit. When an onpoint decision cited by his opponent cast doubt on the single issue counsel had raised, thereby leaving counsel with the view that there were no other issues to appeal, counsel attempted to convince the Court to allow Petitioner to raise

- 24 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 24 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

additional issues on his own behalf. Counsel's attempts to procure for Petitioner an opportunity to supplement the record, in the spirit of Anders v. California, 386 U.S. 738 (1967),11 does not establish that counsel erred or believed he had erred. Rather, it evidences that counsel was attempting to assist Petitioner. Moreover, counsel's failure to raise all the issues Petitioner himself would have chosen to raise does not establish ineffectiveness. Miller, 882 F.2d at 1434 ("[I]n many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hall marks of effective appellate advocacy"). By raising a non-frivolous claim on appeal and requesting that the Court allow Petitioner to raise additional issues, counsel acted within the spectrum of reasonable representation. To the extent Petitioner's Petition can be construed as containing an independent due process claim arising from counsel's ineffective assistance, the Court also rejects it. First, Petitioner has not established counsel's ineffectiveness. Second, Petitioner has no absolute constitutional right to have his appeal argued pro se and by counsel. United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981); see also Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996) ("when a criminal appellant accepts the assistance of counsel, but later objects to his attorney's appeal strategy or preparation of the brief, the criminal appellant cannot then expect to be allowed to file a supplemental brief"). Here, counsel filed a brief raising a claim on

Petitioner's behalf which was considered by the Court of Appeals. There is no indication that Petitioner had unequivocally rejected the assistance of counsel at the

11

Because counsel had actually raised a non-frivolous issue on appeal prior to the time Petitioner attempted to raise his own claims, a typical Anders situation did not exist.

- 25 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 25 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

time this brief was filed. Accordingly, Petitioner did not have a right to file a supplemental brief in addition to the brief submitted by his counsel. Halbert, 640 F.2d at 1009; see also U.S. v. Kaczynski, 239 F.3d 1108, 1116 (9th Cir. 2001)(recognizing that invocation of right to self-representation must be timely an unequivocal)(citing Faretta v. California, 422 U.S. 806 (1975)). The state courts' dismissal of Petitioner's ineffective assistance of appellate counsel claim was not contrary to or an unreasonable application of federal law. It is therefore recommended that this habeas claim be denied. 2. Right to Confront Witnesses (Ground 2) In his second ground for relief, Petitioner alleges that his rights to confrontation and due process were violated when the prosecutor asked Detective Van Meter whether his opinion was influenced by witnesses not called at trial, including eyewitness Cindy Smigel. Petitioner claims that, had he been given the opportunity to confront Ms. Smigel, he could have revealed that she said she could not identify him. Petitioner additionally observes that the jury was out for three days before "teetering to convict him." As a preliminary matter, the Court rejects Respondents' contention that Petitioner failed to fairly present his claim as a federal claim in state court. To fairly present a claim, a federal habeas petitioner must provide the state courts with a fair opportunity to apply controlling legal principles to the facts bearing upon the federal constitutional claim. Baldwin, 541 U.S. at 29; Duncan, 513 U.S. at 365-66. General appeals to broad constitutional principles such as due process, equal protection, and the right to a fair trial are insufficient to establish exhaustion. See Gray v. Netherland, 518 U.S. 152, 163 (1996); Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The state prisoner must describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based so that the state courts

- 26 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 26 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

have a " 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson, 459 U.S. at 6 (citing Picard, 404 U.S. at 276-77); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), amended at 247 F.3d 904 (9th Cir. 2001)(holding that a petitioner must characterize the claims raised in state proceedings "specifically as federal claims"). Generally, the petitioner must

reference specific provisions of the federal constitution, federal statute, or federal case law. Lyons, 232 F.3d at 670. Respondents contend that Petitioner made only a general, naked reference to "due process" and did not alert the state court to the federal nature of the claim. This contention is incorrect. In addition to alleging state law claims, Petitioner's brief explicitly alleged that the prosecutor's remarks violated his federal right to due process under the Fifth Amendment and his right to a fair and impartial jury under the Sixth Amendment. [Doc. 21b, Exh. D, Petitioner's Brief, at 4]. He further delineated the factual basis underlying his federal arguments. Petitioner did not make a blanket appeal to notions of due process, he made a specific claim, and pointed directly to the Fifth and Sixth Amendments of the United States Constitution. Thus, Respondents' argument must be rejected. See Lyons, 232 F.3d at 670. Having found Petitioner's claim fairly presented, the Court turns to the merits of the claim. The right to confront witnesses is a fundamental right. Pointer v. Texas, 380 U.S. 400, 403-04 (1965). It is one of the safeguards essential to a fair trial. Pointer, 380 U.S. at 404, quoting Alford v. United States, 282 U.S. 687, 692 (1931); Douglas v. Alabama, 380 U.S. 415, 418-19 (1965). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary

- 27 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 27 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845-46 (1990). Here, the state court found that any error was invited. The Court reasoned that defense counsel's intent in cross-examining Detective Van Meter was clearly to persuade the jury that petitioner was targeted for the robberies, and that the police had failed to conduct an adequate investigation into whether anyone else might have committed the offenses. The Court held that, "the prosecutor's point in mentioning the non-testifying witness was simply to show that Detective Van Meter had some basis for believing that defendant had committed the bank robberies. This reference was reasonable and pertinent given defense counsel's line of questioning." [Doc. 21b, Exh. D, Court of Appeals Opinion at 8]. When the defendant "opens the door" to testimony by raising it for the first time himself, the invited error doctrine provides that "he cannot complain about subsequent government inquiry into that issue." U.S. v. Hegwood, 977 F.2d 492, 496 (9th Cir. 1992); accord United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988). The state court's findings that Defendant invited the reference to other persons questioned by police by raising questions about the thoroughness of the investigation is consistent with these principles. The state Court further ruled that any error, if not invited, was harmless beyond a reasonable doubt. Confrontation Clause violations are subject to harmless error analysis, because "the Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 674 (1986). On direct review, evidence erroneously admitted in violation of the Confrontation Clause must be shown harmless beyond a reasonable doubt. U.S. v. Nielsen, 371 F.3d 574, 581-83 (9th Cir. 2004); United States v. Bowman, 215 F.3d 951, 961 (9th Cir. 2000). Courts should consider "the importance of the evidence, whether the evidence was

- 28 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 28 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

cumulative, the presence of corroborating evidence, and the overall strength of the prosecution's case." Bowman, 215 F.3d at 961. The Arizona Court of Appeals considered the relevant factors in this case. The Court wrote: Moreover, under the circumstances of this case, we do not think that the jurors were influenced by the prosecutor's remarks or the detective's testimony. While the prosecutor's reference to Cindy Smigel and other non-testifying witnesses may have suggested to the jury that additional evidence of guilt existed, the evidence that was presented at trial against defendant was overwhelming. Numerous witnesses identified defendant in court as the offender. The police found the utility trailer, red poncho, and black motorcycle helmet described by one of the witness's [sic] as being used in the robberies at defendant's home. The license plate number of the trailer provided by a witness who followed the defendant immediately following his departure from the bank was traced to defendant. Finally, in a telephone conversation from jail, defendant discussed how 'to get the gun and the mask." In short, even if the prosecutor's reference to non-testifying witnesses was error and was not invited by defense counsel, we find any such error harmless beyond a reasonable doubt." [Doc. 21b, Exh. D, Court of Appeals Opinion, at 8-9]. The Court's opinion was consistent with and a reasonable application of the principles governing Confrontation Clause cases. For the foregoing reasons, it is recommended that Petitioner's claim that the admission of Van Meter's testimony violated his right to confront witnesses be denied.12 3. Brady (Ground 9) In his ninth ground for relief, Petitioner alleges that the state destroyed evidence and/or impeded Petitioner's access to evidence necessary to support his claims.
12

The Court further observes that Detective Van Meter's testimony was merely responsive to the question whether he spoke with other individuals, including Cindy Smigel, in conducting his investigation. His testimony did not relate the substance of any statements made by Ms. Smigel, and it is therefore not clear that there was any testimonial statement. The extent of confrontation clause scrutiny under these circumstances is unclear. See Crawford v. Washington, 541 U.S. 36, 68 (2004).

- 29 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 29 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

This evidence allegedly consisted of materials seized from Petitioner's residence, including financial documentation that Petitioner claims would have contradicted the state's evidence at trial. Pursuant to Brady, a defendant's due process rights are violated when the state fails to disclose evidence favorable to an accused prior to trial "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87; accord Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir. 2003). However, "not every violation of the duty to disclose constitutes a Brady violation." Bailey, 339 F.3d at 1113. Rather, to violate Brady, the nondisclosure must be so serious that there is a reasonable probability that the suppressed evidence affected the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 281 (1999); Horton v. Mayle, 408 F.3d 570, 578 (9th Cir. 2005). See also Silva v. Brown, 2005 WL 1732765, *4 (9th Cir. July 26, 2005) (stating that " a Brady violation is established where 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict'"). "A 'true' Brady violation therefore occurs only where the State suppressed the evidence, either willfully or inadvertently; the evidence at issue was favorable to the accused, because it is either exculpatory or impeachment material; and the evidence was material to the outcome such that the defendant was prejudiced by the suppression." Bailey (citing Strickler at 281-82). See also Kyles v. Whitley, 514 U.S. 419, 433-434 (1995); United States v. Bagley, 473 U.S. 667, 676 (1985). Petitioner raised this issue in the Superior Court and at the Court of Appeals. The Superior Court initially determined that Petitioner did not present a colorable claim. [Doc. 21, Exh. A at 000216]. The court found that three categories of evidence at issue did not qualify as newly discovered evidence: (1) evidence available and used at trial, (2) evidence created after trial, and (3) evidence not obtained because of a

- 30 -

Case 2:04-cv-00131-MHM

Document 33

Filed 09/06/2005

Page 30 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

lack of due diligence. [Id.]. With regard to the remaining evidence, the Court found that it would qualify as newly discovered, but that relief would not be warranted under Rule 32.1 of the Arizona Rules of Criminal Procedure. [Id.]. The Court of Appeals granted partial relief. [Doc. 21b, Exh. F]. The Court of Appeals upheld the Superior Court's decision regarding the three categories of evidence found not to qualify as newly disco