Free Order on Motion for Hearing - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA James Erin M cKinney, ) ) ) ) ) ) ) ) ) ) ) No. CV 03-774-PHX-DGC DEATH PENALTY CASE

9 Petitioner, 10 vs. 11 12 13 14 Dora Schriro, et al., Respondents.

ORDER

Petitioner James Erin M cKinney ("Petitioner") is a state prisoner under sentence of 15 death. 16 Enlarge Records. 17 (Dkts. 63, 64.) 18 FACTUAL AND PROCEDURAL BACKGROUND 19 On November 12, 1992, following a dual-jury trial with co-defendant M ichael 20 Hedlund, Petitioner's jury convicted him on two counts of first degree murder and 21 H edlund's jury returned a guilty verdict on one count of second degree murder and one 22 count of first degree murder. 23 sentenced Petitioner to deat h for both of the murders and sentenced Hedlund to death for 24 the first degree murder. 25 sentences in a consolidated opinion. 26 (1996). 27 28
1

Pending before the Court is Petitioner's M otion for Evidentiary Hearing and to (D kt . 62.)1 Respondents filed a response, and Petitioner filed a reply.

M aricopa County Superior Court Judge Steven D. Sheldon

The A rizona Supreme Court affirmed the convictions and State v. M cKinney, 185 Ariz. 567, 917 P.2d 1214

Petitioner filed a petition for post-conviction relief ("PCR"), an amended PCR

"Dkt." refers to the documents in this Court's case file. Document 66 Filed 01/05/2006 Page 1 of 16

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petition and a second amended petition with the trial court. (ROA-PCR 13, 19, 42.)2 The PCR petition was denied without an evidentiary hearing. (M E-PCR 53.) The Arizona

Supreme Court summarily denied Petitioner's petition for review on September 27, 2002. (PR Doc. 14.) MOTION DIS CUS S ION Petitioner's motion requests an evidentiary hearing on his argument that the

statutory presumption of correctness set forth in 28 U .S.C. § 2254(e)(1) is unconstitutional, joinder in M ichael Hedlund's motion for evidentiary hearing, and an evidentiary hearing on Claims 10 to 16. I. HEARING REGARDING CONS TITUTIONALITY OF 28 U.S .C. § 2254(E)(1). Section 2254(e)(1) provides: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a St at e court, a determination of a factual issue made by a State court shall be p res umed to be correct. The applicant shall have the burden of rebutting t he presumption of correctness by clear and convincing evidence. 28 U .S.C. § 2254(e)(1). Petitioner contends this statutory presumption infringes on his

fundamental right to habeas corp us and is unconstitutional because it is arbitrary and irrational. In support of t his argument, Petitioner provides statistical information indicating there is a high reversal rate for Arizona death sentences. Petitioner contends that federal

courts should not defer to state court fact finding in light of the significant number of death sentences that are overt urned in state and federal court. Petitioner fails, however,

to connect the high reversal rate with his argument that the statute is unconstitutional. Because death sentences overt urned in state court are not reviewed in a federal habeas
2

"ROA-P CR" refers to the two-volume record on appeal from post-conviction p roceedings prepared for Petitioner's petition for review to the Arizona Supreme Court (Case No. CR-02-0038-P C); "M E-PCR" refers to one volume of minute entries prepared for that petition; and "PR Doc." refers to documents listed on the Arizona Supreme Court's docket for that petit ion. Certified copies of the trial and post-conviction records were provided to this Court by the Arizona Supreme Court on January 27, 2005. (Dkt. 58.) Case 2:03-cv-00774-DGC Document 66 -2Filed 01/05/2006 Page 2 of 16

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proceeding, the s t at utory deference is never applied in such cases.

Further, the study

upon which Petitioner relies includes cases from 1973 to 1995 (dkt. 62 at 10), during which time there was a predecessor federal statutory provision requiring deference to state court findings. See LaVallee v. Delle Rose, 410 U.S. 690, 692 (1973) (per curiam) (deferring t o state court factual findings and requiring that they be overcome by convincing evidence pursuant to 28 U.S.C. § 2254(d)). If, as Pet itioner contends, many death sentences were

reversed in federal court during that time period, the presumption apparently did not impede the availability of habeas corpus. M ore significantly, Petitioner fails to demonstrate t hat the statutory presumption of correctness is arbitrary or irrational. The Sup reme Court has noted that deference is

appropriate in the context of a federal court's collateral review of a state court judgment because of t he res p ect due to state courts in our federal system and the fact that state courts generally are in a bet t er p osition to judge evidence presented in state court. See

M iller-El v. Cockrell, 537 U.S. 322, 340 (2003) (discussing deference in the context of findings regarding discriminatory intent underlying a Batson claim). challenge fails, and his request for a hearing on the issue will be denied. II. JOINDER IN MICHAEL HEDLUND'S MOTION. In his M ay 6, 2005 motion, P etitioner states that he is joining M ichael Hedlund's request for a hearing, which the Court denied in its entirety in M arch 2005 (see Hedlund v. Schriro, CV 02-110-PHX-DGC, dkt. 119). motions of co-defendants. P et it ioner argues it is appropriate to join Petitioner's statutory

He also argues that issues of shackling and severance are

common to both him and Hedlund. Petitioner and Hedlund are not co-defendants before this Court. Because they are

separate pet it ioners with separate cases, it is not proper for Petitioner to join Hedlund's motion. M oreover, H edlund's motion was denied before Petitioner's request to join,

Hedlund did not request evidentiary development on the issue of severance, and whether P et itioner's claims were exhausted or diligently developed in state court, and whether the state court's decis ions regarding those issues violated Petitioner's constitutional rights, -3Filed 01/05/2006

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are individual ques t ions specific to Petitioner.

Petitioner's request to join M ichael

Hedlund's motion for evidentiary development will be denied. III. HEARING ON CLAIMS 10 TO 16. In the Court's Order of Appointment and General Procedures, counsel was informed that evidentiary motions are required to: (1) (2) specifically identify which enumerated claim(s) Petitioner contends needs further factual development; describe with specificity the facts sought to be developed; explain why the facts sought to be developed were not developed in state court; and explain why the failure to develop such facts in state court was not the result of lack of diligence, in accordance with the Supreme Court's decision in Williams v. Taylor, 529 U.S. 420 (2000).

8 (3) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (4)

In addition, any motion for evidentiary hearing shall address (1) whet her the factual allegations would, if proved, entitle Petitioner to relief on a specific habeas claim; and (2) whether the st ate court trier of fact has reliably found the relevant facts after a full and fair hearing. See Jones v. Wood, 114 F.3d 1002, 1010 (9th Cir. 1997). Any mot ion for evidentiary development that is filed prior to the filing of Respondents' Answer or that fails to address the above-listed requirements will be summarily denied. (Dkt. 7 at 4.) Petitioner's motion fails to satisfy the above-stated requirements. Petitioner

requests an evidentiary hearing on his ineffective assistance of couns el ("IAC") claims ­ Claims 10 to 16. Petitioner argues generally that a hearing is necessary because trial and

appellate counsel never asked Petitioner what occurred during the crimes, but he does not connect t hat factual issue to any specific claim. Neither the motion nor the reply identifies a single fact to be developed, or discusses why any such fact s w ere not developed in state court, whether Petitioner was diligent in attempting to develop these facts in s t ate court, how the fact s t o be developed would demonstrate that Petitioner is entitled to relief as to the specific claims at issue, or whether the state court found the relevant facts after a full hearing. Given this lack of explanation, the Court is unable to determine whether an

evidentiary hearing should be held and the mot ion w ill be denied without prejudice to refiling. Similarly, although the caption of Petitioner's motion indicates he is seeking to -4Filed 01/05/2006

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expand the state court record, neither the body of the motion nor the reply requests expansion as to any claims or documents. without prejudice to refiling. T herefore, that request also will be denied

In preparation for a pos sible second motion for evidentiary

development of Claims 10-16, the Court at this time will assess the procedural status of these claims to eliminat e a renewed request as to claims that are procedurally barred or meritless on their face. A. Principles of Exhaustion and Procedural Default.

Because this case w as filed after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"). Lindh v. M urphy, 521 U.S. 320, 336 (1997); Woodford v. Garceau, 538 U.S. 202, 210 (2003). T he AEDPA

requires that a writ of habeas corpus not be granted unless it appears that the petitioner has properly exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); s ee als o Coleman v. Thompson, 501 U.S. 722, 731 (1991); Ros e v. Lundy, 455 U.S. 509 (1982). To properly exhaust state remedies, the petitioner must "fairly pres ent " his claims to the state's highest court in a procedurally appropriate manner. O 'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is "fairly presented" if the petitioner has described t he op erat ive facts and the federal legal theory on which his claim is based so that t he s t at e courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his

cons t it ut ional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).3 If a petitioner's habeas claim includes new factual allegations not

presented to the state court, the claim may be considered unexhausted if the new facts "fundamentally alter" the legal claim presented and considered in state court. Hillery, 474 U.S. 254, 260 (1986). Vasquez v.

Resolving whether a petitioner has fairly presented his claim to the state court, t hus permitting federal review, is an intrinsically federal issue which must be determined by the federal court. Wyldes v. Hundley, 69 F.3d 247, 251 (8t h Cir. 1995); Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir. 1994). Case 2:03-cv-00774-DGC Document 66 -5Filed 01/05/2006 Page 5 of 16

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A habeas petitioner's claims may be precluded from federal review in either of two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted in federal court if the petitioner failed to present the claim in any forum and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n.1. This is often referred to as "technical" exhaustion ­ although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996) ("A habeas petitioner w ho has defaulted his federal claims in state court meets the technical requirements for exhaustion; t here are no state remedies any longer `available' to him."). Rule 32 of the Arizona Rules of Criminal Procedure governs when petitioners may seek relief in post-conviction proceedings and raise federal constitutional challenges to their convictions or sentences in state court. Rule 32.2 provides, in part: a. Preclusion. A defendant shall be precluded from relief under t his rule based upon any ground: .... (2) Finally adjudicated on the merits on appeal or in any p revious collateral proceeding; (3) That has been waived at trial, on appeal, or in any previous collateral proceeding. b. Exceptions. Rule 32.2(a) shall not apply to claims for relief based on Rules 32.1(d), (e), (f), (g) and (h). When a claim under [these s ubsections] is rais ed in a successive or untimely petition, the petition must set forth the reasons for not raising the claim in the previous p etition or in a timely manner. If meritorious reasons do not appear subst ant iating the claim and indicat ing why the claim was not stated in the previous petition or in a timely manner, the petition shall be summarily dismissed. Ariz. R. Crim. P. 32.2 (2002)(emphasis added). Thus, pursuant to Rule 32.2, petitioners may not be granted relief on any claim which could have been rais ed in a prior Rule 32 petition for post-conviction relief. Only if a claim falls within certain exceptions (subsections (d)

through (h) of Rule 32.1) and the p et it ioner can justify why the claim was omitted from a -6Filed 01/05/2006

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prior petition will the preclusive effect of Rule 32.2 be avoided. Therefore, in the present case, if there are claims which have not been raised previously in state court, the Court must determine whether P etitioner has state remedies currently available to him under Rule 32. If no remedies are currently available, petitioner's claims are "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732,

735 n.1. In addition, if t here are claims that were fairly presented in state court but found default ed on state procedural grounds, such claims also will be found procedurally default ed in federal court so long as the state procedural bar was independent of federal law and adequat e t o w arrant preclusion of federal review. Harris, 489 U.S. at 262. A state procedural default is not independent if, for example, it depends up on an antecedent federal constitutional ruling. See Stewart v. Smith, 536 U.S. 856 (2002) (per curiam). A state bar is not adequate unless it was firmly established and regularly applied at the time of application by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991). Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims . Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, the Court will not review the merits of procedurally defaulted claims unles s a petitioner demonstrates legitimate cause for the failure to properly exhaust in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would res ult if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 735 n.1. Ordinarily " cause" to excuse a default exists if a petitioner can demonstrate that " s ome objective factor external to the defense impeded counsel's efforts to comply w it h the State's procedural rule." Id.. at 753. Objective factors w hich cons t itute cause include interference by officials which makes compliance with the state's procedural rule

impracticable, a showing that the factual or legal basis for a claim w as not reasonably available to counsel, and constitutionally ineffective assistance of counsel. Carrier, 477 U .S. 478, 488 (1986). M urray v.

"Prejudice" is actual harm resulting from the alleged

constit utional error. M agby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish -7Filed 01/05/2006

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prejudice resulting from a procedural default, a habeas petitioner bears the burden of showing not merely that t he errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvant age, infecting his entire trial with errors of constitutional dimension. United States v. Frady, 456 U.S. 152, 170 (1982). B. Claim 10.

Petitioner alleges he had IAC at trial based on counsel's failure to: (a) effectively question nine of the witnesses; (b) call expert witnesses; (c) object to t ranscripts of Petitioner's purported confession to his father; and (d) consider abuse, the investigat ion of mitigat ion, t he presentation of mitigation, and the submission of experts and dual juries. Respondents concede that Claims 10(a) and (c) are exhausted and prop erly before this Court for review, but contend that (b) and (d) are defaulted. that Claim 10 fails to state a claim. Regardless of exhaus t ion, the Court will dismiss the entirety of the claim as meritless. See 28 U.S.C. § 2254(b)(2) (allowing denial of unexhausted claims on the merits); Rhines v. Weber, 125 S. Ct. 1528, 1535 (2005) (holding t hat a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under (b)(2) as "plainly meritles s "). T o p revail on a claim of IAC, Petitioner must show that counsel's Strickland v. Further, Respondents argue

performance was deficient and that the deficiency prejudiced the defense. Washington, 466 U.S. 668, 668 (1984).

In Claim 10(a), Petitioner alleges counsel was

ineffective in ques t ioning specific witnesses, but does not allege any facts regarding how the questioning w as defect ive. Similarly, Petitioner alleges in Claim 10(b) that his counsel failed to call expert witnesses, but does not identify any type of expert that should have been called. The entirety of the allegations comprising Claim 10(c) are that counsel "failed to object to transcripts of purported confession to his father." (Dkt. 42 at 64.) As to Claim 10(d), Petitioner generically alleges that counsel "did not adequately consider" the listed items. M oreover, Pet it ioner does not identify any prejudice arising from the alleged The minimal conclusory allegations set forth in Claim 10 are insufficient for See Rule 2, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring -8Filed 01/05/2006

deficiencies. habeas relief.

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petition to state the facts in support of each claim); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (finding insufficient conclusory allegations that did not identify what counsel would have done if performing effectively); M iller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (finding that the pet it ioner's failure to assert any result ing p rejudice rendered IAC claims too conclusory for relief). the Court will dismiss Claim 10 on the merits.4 C. Claim 11. Therefore,

Petitioner alleges couns el was ineffective for failing to adequately investigate and present mitigation evidence in violation of his rights under the Sixth and Fourteenth Amendments.5 Specifically, Petitioner asserts that couns el did not request a mitigation

specialis t, provide sufficient information to the court in the mitigation phase, and adequately investigate, prepare and present available mental health mitigation. Petitioner

alleges that the outcome of his sentencing would have been different if counsel had performed adequately. In the second amended P CR p et ition, Petitioner alleged that counsel failed generally t o adequately investigate and present mitigation, and failed specifically to investigate and

Claim 10(d), to the extent it alleges ineffectiveness relating to mitigation, is repetitive of some of the allegations raised in Claim 11. The dis missal of Claim 10(d) does not affect the Court's assessment of the more specific allegations in Claim 11. See infra Claim 11. With respect to Claims 11 and 12, Petitioner also alleges that his due process rights under the Fifth Amendment were violated. It is the Fourteenth Amendment , not the Fifth Amendment , t hat protects a person against deprivations of due process by a state. See U.S. Const. amend. XIV, § 1 ("nor shall any state deprive any person of life, liberty, or property without due process of law"); Castillo v. M cFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) ("The Fifth Amendment prohibits the federal government from depriving persons of due process, while the Fourteenth Amendment explicitly prohibits deprivations without due process by the several St ates."). Because the Fifth Amendment Due Process Clause does not provide a cognizable ground for relief regarding Petitioner's s t at e court conviction, that port ion of Claims 11 and 12 will be summarily dismissed. The Court will address Petitioner's claims under the Sixth and Fourteenth Amendments. Case 2:03-cv-00774-DGC Document 66 -9Filed 01/05/2006 Page 9 of 16
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substant iat e t he post-traumatic stress, child abuse and brain injury he suffered, and their relationship to violent adult behavior. (ROA-PCR 42 at 4, 13, 22-30.) The PCR court ruled on the merits of that claim. (M E-PCR 53 at 12-13.) In t he petition for review, Petitioner alleged that his counsel was ineffective for failing to present evidence that the abuse Petitioner suffered as a child impaired his ability to conform his conduct to the law, for failing generally to adequately investigat e and present all mitigation, and for filing an unintelligible mitigation memorandum that did not sufficient ly s up p ort a sentence less than death. (PR Doc. 1 at 3-4, 12.) The Court finds that Petitioner fairly pres ent ed Claim 11 in his PCR proceedings and it is properly before this Court for review on the merits. D. Claim 12.

Petitioner alleges that counsel was ineffective for failing to object at trial to the state orally submitting five w it nes s es as experts, the court's allowance of which improperly bestowed credibility upon the witnesses. Petitioner alleges counsel's performance was

deficient and he was prejudiced by the bolstering of the witnesses, without which he would not have been convicted. Petitioner does not allege that there was not a proper

foundation for the witnesses' tes t imony or that any of the actual testimony should not have been admitted; rather, he challenges only the procedure of bestowing "expert status" on the witnesses in front of the jury. Respondents concede t his claim is exhausted as to the Sixth A mendment allegation, but contest the Fourteenth Amendment part of the claim. Regardless of exhaustion, the Court will dismiss the entirety of the claim as meritles s . See

28 U.S.C. § 2254(b)(2) (allowing denial of unexhausted claims on the merits); Rhines, 125 S. Ct. at 1535 (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under (b)(2) as "plainly meritless"). Petitioner asserts that he is entitled to relief under § 2254(d)(1) because t he P CR court's ruling was contrary to, or an unreasonable application of, clearly established Supreme Court law. To assess a habeas claim under subsection (d)(1), the Court must first identify the "clearly established Federal law," if any, that governs the sufficiency of t he claims on habeas review. "Clearly established" federal law includes the holdings of the - 10 Filed 01/05/2006

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Supreme Court at the t ime the petitioner's state court conviction became final.

See

Williams v. Taylor, 529 U .S. 362, 365 (2000). A state court decision is "contrary to" clearly established federal law if it fails to apply the correct controlling Supreme Court authority or if it applied the correct authority to a case involving facts materially indis tinguishable from those in a cont rolling Supreme Court case, but nonetheless reached a different result. Id. at 413; see also Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). A state court decision amount s t o an "unreasonable application" under § 2254(d)(1) if the state court correctly identifies the governing "clearly established" legal principle from the Supreme Court's decisions, but then makes an objectively unreasonable application of that principle to the facts of the petitioner's case. See Andrade, 538 U .S. at 75. An "objectively unreasonable" application of federal law involves more than an incorrect or even clearly erroneous app licat ion of federal law. See Williams, 529 U.S. at 410-11 ("[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable.").

The AEDPA mandates deferential review of a state court's application See Woodford v. Vis ciotti, 537 U.S. 19,

of clearly established Supreme Court precedent. 24 (2002) (citing Lindh, 521 U.S. at 333 n.7).

The PCR court ident ified and applied the clearly established Supreme Court law governing IAC claims, as set fort h in Strickland. (See M E-PCR 53 at 3, 11 (citing State v. Ysea, 191 Ariz. 372, 377, 956 P.2d 499, 504 (1998) (citing Strickland, 466 U .S. at 687), sup ers eded on other grounds by A.R.S. § 13-703(H)(1); Strickland, 446 U.S. at 686, 689)). The PCR court det ermined that Petitioner had not set forth any alleged acts by counsel that reflected deficient performance and denied the claim as not meritorious. (Id. at 12.) The

relevant inquiry is whether this determination was an unreas onable application of Strickland. To establish prejudice under Strickland, a petitioner must show that there is a - 11 Filed 01/05/2006

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"reasonable p robability" that, absent counsel's errors, the result of the proceeding would have been different. 466 U .S. at 694. Petitioner makes only a conclusory allegation that the outcome would have been different if counsel had objected to the procedure employed by the prosecut or and allowed by the court. If counsel had objected to the procedure,

however, the five witnesses at issue, although perhaps not designated as experts, would still have t es t ified in full before the jury. It is possible that the jury gave more weight to the testimony of these witnesses because they were designated as exp ert s , but that possibility is not sufficient to establish a "reasonable probability" that, without such a designat ion, Petitioner would not have been convicted. The Court cannot conclude that the PCR

court's decision constituted an objectively unreas onable application of Strickland to the facts of this case. Because no evidentiary development would alter the Court 's analysis

of this claim, Claim 12 will be denied on the merits. E. Claims 13-16.

Petitioner alleges that appellate counsel was ineffective for failing to raise the following claims: erroneous use of dual juries at trial (Claim 13); erroneous reversal of

severance (Claim 14); ineffective assistance of trial counsel for failing t o voir dire the jury regarding their views on the deat h p enalt y (Claim 15); and ineffective assistance of trial counsel for failing to properly present mitigating evidence (Claim 16). P et it ioner asserts that he raised all of these claims in his PCR petition. In the second amended PCR p et it ion, Petitioner argued that appellate counsel was ineffective for raising only five issues and failing to raise ot her meritorious arguments. (ROA-PCR 42 at 30-33.) Petitioner stated generally that some of the meritorious issues to w hich he referred were rais ed by his co-defendant and other issues were not raised by either of them (id. at 31), but he did not actually identify any issue appellate counsel failed to raise (id. at 30-33). The PCR court ruled that Petitioner had not " p resented a single issue that could have been raised on appeal that would have changed the out come." (M E-PCR 53 at 13.) In his

petition for review, Petitioner argued only that appellate couns el was ineffective for failing t o raise "several meritorious issues;" no specific issues were identified. (PR Doc. 1 at 17- 12 Filed 01/05/2006

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19.) Petitioner must have fairly presented in state court the factual basis of the acts alleged to constitute ineffective assistance. "A thorough description of the operative facts

before the highest state court is a necessary prerequisite to satisfaction of t he s t andard of O'Sullivan and Harles s t hat `a federal habeas petitioner [must] provide the state courts with a `fair opportunity' to apply cont rolling legal precedent to the facts bearing upon his constitutional claim.'" Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003) (quoting Harless, 459 U.S. at 6). Petitioner's generic allegation of IAC in his petition for review was not

sufficient to fairly p res ent to the state court the claims now raised in this Court ­ that appellate counsel was ineffective for failing to assert specific claims. See Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (treating distinct failures by counsel as separate claims for exhaus t ion and procedural default); M atias v. Oshiro, 683 F.2d 318, 319-20 & n.1 (9th Cir. 1982) (finding no fair presentation of eight grounds of IAC not raised in state court); Flieger v. Delo, 16 F .3d 878, 885 (8th Cir. 1994) (raising specific claims of IAC in state court does not exhaust all such claims for federal habeas review); cf. St rickland, 466 U.S. at 690 (requiring identification of the specific "acts or omissions" of counsel and a determinat ion of whether those acts are outside the range of competent assistance). Petitioner is now precluded by Arizona Rules of Criminal Procedure 32.2(a)(3) and 32.4 from obtaining relief on Claims 13 to 16 in state court. See Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h); note 6. Thus, Claims 13 to 16 are technically exhausted but procedurally

defaulted, absent a showing of caus e and prejudice or a fundamental miscarriage of justice. Pet it ioner does not allege a miscarriage of justice. To show cause, Petitioner argues that Arizona's PCR process is inadequate because his PCR counsel was ineffective. Ineffective assistance of counsel can cons t itute sufficient cause, however, only when it rises to the level of an indep endent constitutional violation, and there can be no constitutional violation when a petitioner has no constitutional right to counsel. Coleman,

501 U.S. at 752, 755. There is no constitutional right to counsel in stat e PCR proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); M urray v. Giarratano, 492 U.S. 1, 7-12 - 13 Filed 01/05/2006

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(1989) (the Const itution does not require states to provide counsel in PCR proceedings even when the putative petitioners are facing the death penalty); Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir. 1993) (refusing to extend the right of effective assistance of counsel to state collateral proceedings); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1990). Petitioner also raises several specific claims relating to PCR counsel. First, Petitioner argues he was entitled to the effective assistance of PCR couns el because it was his first and only opportunity to assert ineffective assistance of trial and appellate couns el claims. In Evitt s v. Lucey, 469 U.S. 387, 396 (1985), the Court held that a petitioner is entitled to effective assistance of counsel on his firs t ap peal as of right. Since Evitts was decided,

however, the courts have clarified that the holding in Evitts applies strictly to a first appeal as of right , even if particular claims could not have been raised in that appeal, because there is no constitut ional right to counsel in state PCR proceedings. See Finley, 481 U.S. at 558; M oran v. M cDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996) (IAC claim defaulted for not being raised in first habeas petition, even though the same counsel represented petitioner in both proceedings, because no right to counsel in habeas p roceedings); Jeffers v. Lewis, 68 F.3d 299, 300 (9th Cir. 1995) (en banc) (plurality) (ruling an Arizona petitioner had "no Sixth Amendment right to couns el during his state habeas proceedings even if that was the first forum in which he could challenge constitutional effectiveness on the part of trial counsel"); see also Evit t s , 469 U.S. at 396 n.7 (not ing t hat discretionary appeals are treated differently because there is no right to counsel). Petitioner's argument fails because there is no constitutional right

to counsel for PCR proceedings even if it is the petitioner's first opportunity to raise an IAC claim. Second, Petitioner contends Arizona's court rules render the PCR proceeding part of a mandatory appellate process for capital cases with a s t at ut ory right to counsel, thus, due p rocess requires such counsel to be effective. The Court disagrees. Petitioner cites

no case, and the Court has found none, which holds that a state is required by the federal - 14 Filed 01/05/2006

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constitut ion t o p rovide a right to counsel in PCR proceedings. The fact that a state may, "as a matter of legislative choice," Ross v. M offitt, 417 U.S. 600, 618, (1974), provide for counsel in discretionary appeals following a first ap p eal of right does not extend the Sixth Amendment's guarantee of effective counsel to discretionary appeals. See Evitts, 469 U .S. at 394, 397 n.7; Finley, 481 U.S. at 559 (where a state provides a lawyer in a state post-conviction proceeding, it is not "the F ederal Constitution [that] dictates the exact form such assistance must assume," rather, it is in a state's dis cretion to determine what p rotections to provide). Further, the Ninth Circuit has held explicitly that "ineffect ive

assistance of counsel in habeas corpus proceedings does not present an independent violation of the Sixth Amendment enforceable against the s t at es through the Due Process Clause of the Fourteenth Amendment." Bonin, 77 F.3d at 1160. Because Petitioner's PCR proceeding took place after his appeal of right, it was a discretionary proceeding not conferring a constitutional right to effect ive assistance of counsel. Thus, even if PCR

counsel's performance did not conform to minimum s t andards, it did not violate the federal constitution and cannot excuse the procedural default of any claims. As a final matter, before ineffectiveness may be used to establish cause for a procedural default, it mus t have been presented to the state court as an independent claim. M urray, 477 U.S. at 489. Petitioner did not present in state court any independent Therefore, even if cognizable, his allegation

ineffectiveness claims regarding PCR counsel.

of PCR counsel's ineffectiveness cannot constitute cause. Because Petitioner has not es tablished cause to overcome the defaults, the Court need not analyze prejudice. See Thomas v. Lewis, 945 F .2d 1119, 1123 n.10 (9th Cir. 1991). Claims 13 to 16 will be dismissed as procedurally barred. CONCLUS ION Petitioner's request for a hearing on a challenge to the statutory presumption of correctness under 28 U.S.C. § 2254(e)(1) is denied. Petitioner's request t o join M ichael

H edlund's motion for evidentiary development is denied. Petitioner's motion for a hearing and to expand the state court record is denied without prejudice to refiling on any claims - 15 Filed 01/05/2006

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remaining before this Court. Claims 13-16 are dismissed as procedurally barred. Claims 10 and 12 are dismissed on the merits. If Pet it ioner files a new motion for evidentiary

development, it must comply with the Court's Order of General Procedures detailing the requirements for motions for evidentiary development (dkt. 7). In particular, it must discuss each claim individually, t he facts sought to be developed as to the specific claim, and whether Petitioner was diligent in attempting to develop the claim in state court. subsequent motion does not comply, it will be summarily dismissed. Accordingly, IT IS HEREBY ORDERED that the following Claims are dismissed with prejudice: (a) Claims 13-16 based on a procedural bar; (b) the Fift h A mendment aspect of Claims 11 and 12 as not cognizable; and (c) Claims 10 and 12 on the merits as a matter of law. IT IS FURTHER O RDERED that Petitioner's M otion for Evidentiary Hearing and M otion to Enlarge Records (dkt. 62) is denied without prejudice. IT IS FURTHER ORDERED that if P etitioner files a renewed motion for evidentiary development he shall do so within forty-five (45) days of the filing date of this order. IT IS FURTHER ORDERED that if, pursuant to LRCiv. 7.2(g), Petitioner or Respondents file a M otion for Reconsideration of t his O rder, such motion shall be filed within fifteen (15) days of the filing of this Order. IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. DATED this 3rd day of January, 2006. If a

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