Free Order on Report and Recommendations - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Terry L. Stewart, et al., 13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On November 22, 2002, Petitioner, while confined in the Arizona State Prison Complex in Yuma, Arizona, filed with the Clerk of Court a Petition for Writ of Habeas Corpus (Doc. #1) pursuant to 28 U.S.C. § 2254. On June 20, 2005, the Magistrate Judge issued a Report and Recommendation (Doc. #45) ("R&R") recommending that the motion be denied. On July 7, 2005, Petitioner timely filed objections to the R&R (Doc. #46). The Court now rules as follows. I. STANDARD OF REVIEW This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). Because objections were filed, the Court will review the R&R de novo.
Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

James Lee Sueing, Petitioner, vs.

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

No. CV 02-2347-PHX-JAT (MS) ORDER

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II.

FACTUAL AND PROCEDURAL BACKGROUND The Magistrate Judge summarized the factual and procedural background at pages 1-

10 of the R&R. Neither party disputes this summary. The Court hereby adopts this recitation of the factual and procedural background. III. DISCUSSION 1. R&R and Objections

The R&R recommends that the Petition be dismissed. The Magistrate Judge begins by addressing the Respondents' claim that the Petition was time-barred because Petitioner's "Notice of Post-Conviction Relief" filed in state court did not satisfy the requirements for tolling the one-year statute of limitations. The Magistrate Judge concludes that the "Notice of Post-Conviction Relief" renders an application for state collateral relief pending for the purposes of tolling the statute of limitations, and therefore, the Petition for Writ of Habeas Corpus was timely filed. Next, the Magistrate Judge addresses Petitioner's two grounds for relief: (1) that the reasonable doubt instruction to the jury was unconstitutional because it lowered the State's burden of proof and (2) that trial counsel was ineffective for withdrawing the theft jury instruction on the eve of the trial. For the first claim, the Magistrate Judge concludes that some uncertainty exists as to whether Petitioner exhausted his claim, but even assuming Petitioner did exhaust the claim, it fails on the merits. For the second claim, the Magistrate Judge concludes that the state court correctly ruled that Petitioner's trial counsel was not ineffective. Petitioner raises several objections to the Magistrate Judge's recommendations. First, Petitioner argues that the Magistrate Judge improperly relied upon Supreme Court dicta to support the Arizona Court of Appeals' decision on the jury instruction claim. Specifically, Petitioner contends that Arizona law treats the "firmly convinced" language of the jury instruction as a mere restatement of the "clear and convincing evidence" standard rather than the "reasonable doubt" standard. Second, Petitioner claims that the Magistrate Judge improperly relied on the state court's factual findings related to the ineffective counsel claim. -2Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 2 of 14

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Specifically, Petitioner claims the Magistrate Judge was not bound by the state court's factual findings because the state court misapplied the legal standard that determines when a court must require jury instructions for a lesser included offense. 2. Analysis A. Respondents' Claim that Petition is Time-Barred

The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") enacted a one-year limitation period for state prisoners filing habeas corpus petitions in federal court. The time begins to run on the date the judgment of conviction becomes final, that is, at "the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (citing Griffith v. Kentucky, 479 U.S. 314, n.6 (1987)). The one year statute of limitation is tolled during the time that a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). The Magistrate Judge first evaluates Respondents' argument that, under Woodford v. Garceau, 538 U.S. 202, 206-207 (2003), Petitioner's pending state court challenge to his sentencing statute, "Notice of Post-Conviction Relief," does not constitute a properly filed application for state collateral relief for the purposes of tolling the statute of limitations, and, thus, Petitioner's claims are time-barred. (R&R at 11.) Petitioner and the Magistrate Judge note that the Ninth Circuit in Isley v. Arizona Dept. of Corrections, 383 F.3d 1054 (9th Cir. 2004), which interpreted Garceau, held that Arizona's "Notice of Post-Conviction Relief" requirement qualifies as an a application for state collateral relief pending for the purposes of tolling the AEDPA's one-year statute of limitations. (R&R at 11.) Accordingly, the Court agrees with Petitioner and the Magistrate Judge and finds that Petitioner timely filed his Petition for Writ of Habeas Corpus.

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B.

Ground

One:

The

Reasonable

Doubt

Instruction

was

Unconstitutional i. Whether Petitioner Exhausted the Claim For Purposes of Federal Review A federal court may not grant habeas relief unless it appears that the petitioner has properly exhausted all available state court remedies. See 28 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To properly exhaust state remedies, the petitioner must "fairly present" his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Castille v. Peoples, 489 U.S. 346, 351 (1989). A claim is "fairly presented" if the petitioner has described the operative facts and the federal legal theory so that the state court has the, "`opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). The Magistrate Judge first addresses Petitioner's argument that the Anders1 brief, which he filed in the Court of Appeals, constituted exhaustion for the purposes of federal habeas corpus review. (R&R at 12.) The Magistrate Judge responds by noting that a petitioner is still required to raise his federal claims in the Arizona Supreme Court despite the mandatory nature of fundamental error review by the court. (Id.) (citing Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002), cert denied sub nom., 538 U.S. 1053 (2003)). Next, Petitioner attempts to distinguish the Ninth Circuit's ruling in Beaty, by asserting that he affirmatively raised the claim in the Anders brief to the Arizona Court of Appeals for discretionary review. (R&R at 13.) The Magistrate Judge reasons that Petitioner made no specific reference as to how the claim was presented in the Anders brief and instead

When appointed appellate counsel cannot find a basis for appeal he is permitted to file an Anders brief describing the efforts he made and the lack of success. After filing this brief, the burden shifts to the appellate court to review the record for any errors, including fundamental errors. Anders v. State of Cal., 386 U.S. 738, 744 (1967). -4Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 4 of 14

1

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Petitioner concludes summarily that the nature of fundamental error review established exhaustion for the purposes of federal review. (R&R at 13.) The Magistrate Judge finds that fundamental error review does not constitute fair presentation for purposes of federal habeas corpus review, especially in cases, as here, where the sentence is less than death, because it does not require the Arizona Supreme Court to search for particular errors. (Id. at 14) (citing Poland v. Stewart, 117 F.3d 1094, 1105-1106 (9th Cir. 1997)). Petitioner raises no objections to these conclusions, thus, the Court agrees with the Magistrate Judge's conclusion that a review by the Arizona Court of Appeals for fundamental error does not constitute exhaustion for the purposes of federal habeas corpus review. Instead, as the Magistrate Judge notes, Petitioner was required to affirmatively raise his federal claim in the Arizona Court of Appeals on direct appeal. Therefore, the Court finds that the Petitioner did not exhaust his claim by merely submitting a request for a fundamental error review by the Arizona Court of Appeals. Next the Magistrate Judge examines whether the content of Petitioner's Anders brief "alerted" (or "fairly presented") the Arizona Court of Appeals to the federal nature of the claim for the purposes of federal habeas corpus review. (R&R at 15.) Following Duncan, the Ninth Circuit has held that a state prisoner has not "fairly presented" (and thus exhausted) federal claims in state court unless he specifically indicated to that court that the claims were based on federal law. See, e.g., Lyons v. Crawford, 232 F.3d 666, 669-70 (2000), as amended by 247 F.3d 904 (9th Cir. 2001) (general reference to insufficiency of evidence, right to be tried by impartial jury, and ineffective assistance of counsel lacked the specificity and explicitness required to present federal claim). Magistrate Judge notes that in

Petitioner's Anders brief, appellate counsel raised the issue of jury instructions in the following manner:

No arguable question of law has been found. It is respectfully requested that this Court search the record for fundamental error. Despite this conclusion, appellant has requested counsel to raise the following issues: -5Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 5 of 14

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... 8. The reasonable doubt instruction was erroneous. (R&R at 15; Doc. #14, Exh. D at 7-8.) The Magistrate Judge notes that appellate counsel did not cite any federal authority supporting this claim nor did appellate counsel specifically note that the claim was federally based. (R&R at 15.) Also, the Magistrate Judge points out that appellate counsel did not use the additional time provided by the Arizona Court of Appeals to brief the issues raised in Petitioner's Anders brief. (Id.) Thus, the Court agrees with the Magistrate Judge's conclusion that Petitioner did not "fairly present" the jury instruction claim, asserted in the Petition for Writ of Habeas Corpus (that the instruction lowered the standard from reasonable doubt to clear and convincing evidence) to the Arizona Court of Appeals in his Anders brief. However, the Magistrate Judge notes the Arizona Court of Appeals addressed the issue of jury instruction raised in the Anders brief as follows: [t]he [reasonable doubt] instruction was that approved by our Supreme Court in State v. Portillo . . . and was therefore proper. (Id.; Doc. #14, Exh. F at 7.) Here, the Arizona Court of Appeals' reason for deciding to use

16 the State v. Portillo decision as support for the instruction being "proper" is uncertain. The 17 R&R notes that two interpretations are possible. (R&R at 16.) The Arizona Court of 18 Appeals' could have reasoned that the instruction given was proper based on state court 19 precedent, that is, because the Arizona Supreme Court dictated that it must be given. (Id.) 20 Alternatively, the Arizona Court of Appeals could have meant that the instruction was 21 constitutionally (U.S.) valid as applied to Petitioner because State v. Portillo specifically 22 addressed whether the instruction on reasonable doubt was proper under the United States 23 Constitution. (Id. at 16-17.) Due to this ambiguity, it is not clear whether Petitioner 24 exhausted his jury instruction claim. Thus, the Magistrate Judge continues to review the jury 25 instruction claim on the merits. The Court agrees with the Magistrate Judge's's conclusions 26 regarding the issues of exhaustion and therefore, will examine the claim on the merits. 27 28 -6Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 6 of 14

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ii.

Review of Reasonable Doubt Instruction, Assuming Petitioner Exhausted the Claim

With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established "Federal law"2 or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Also, this Court must presume the correctness of the state court's factual findings regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998). The Magistrate Judge concludes that the Arizona Supreme Court's holding in State v. Portillo, as applied by the Arizona Court of Appeals to Petitioner's jury instruction claim, was not contrary to "clearly established" federal law. (R&R at 17-19.) Specifically, the R&R notes that Portillo discussed the U.S. Constitutional standards applicable to jury instructions and that a defendant must be convicted upon proof beyond a reasonable doubt. (Id. at 17) (citing Portillo, 182 Ariz, at 594 (citing, among other cases, Winship, 397 U.S. at 364 and Cage, 498 U.S. at 41)). Further, the R&R notes that Portillo followed the Federal Judicial Center's model instruction sanctioned by Justice Ginsburg in her concurring opinion in Victor v. Nebraska, 511 U.S. 1, 26 (1994) as "clear, straightforward, and accurate . . . surpassing all others . . . in stating the reasonable doubt standard succinctly and

Further, in applying "Federal law" the state courts only need to act in accordance with Supreme Court case law. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003) ("In attempting to answer [whether the state court applied Federal law in an objectively reasonable manner], the only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. See Williams, 529 U.S. at 412 ("The ... statutory language makes clear ... that § 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence."). -7Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 7 of 14

2

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comprehensively." (R&R at 18.) Also, the Magistrate Judge, while noting the authority is only persuasive, cites a string of cases from each Circuit all of which have accepted the reasonable doubt instruction supported by Justice Ginsburg in Victor. (Id. at 19.) After evaluating Petitioner's claim on the merits, the Magistrate Judge concludes that the Arizona Court of Appeals did not unreasonably determine the facts involving the jury instruction claim, nor act in any manner contrary to "clearly established" federal law. On the contrary, Petitioner claims that the Magistrate Judge's's reliance on Justice Ginsburg's concurring opinion in Victor is ill-founded, since the AEDPA requires a court to rely upon the holdings, rather than dicta, of the Supreme Court in determining whether a state court decision is an "unreasonable application" of federal law. (Petitioner's Objections ("PO") at 2) (citing Williams, 529 U.S. at 412). Thus, Petitioner argues that the controlling Supreme Court opinions are Winship and Cage. (PO at 2.) Petitioner analogizes the jury instruction at issue, which is allegedly below the reasonable doubt standard, to that of Cage, which created a standard that was above reasonable doubt. (Id.) Petitioner concludes that the jury instruction at issue is in violation of due process, like the instruction in Cage, for creating an improper standard. (Id.) In addition, Petitioner cites, Arizona v. King, 158 Ariz. 419, 763 P.2d 239 (1988), where the state supreme court defined "clear and convincing evidence" as the degree of proof that will produce a "firm belief or conviction." (Id. at 2-3.) Petitioner contends that this case shows the jury instructions at issue created a clear and convincing standard that fell short of the required reasonable doubt standard. The Court agrees with the Magistrate Judge's conclusion that the Arizona Supreme Court's holding in State v. Portillo, as applied by the Arizona Court of Appeals to Petitioner's jury instruction claim, was not contrary to "clearly established" federal law. Specifically, the Court finds that the Magistrate Judge adequately addressed Petitioner's objections to Ginsburg's opinion in the R&R. The Magistrate Judge concedes that

Ginsburg's opinion was not "clearly established" federal law under Williams. Yet, the Magistrate Judge correctly notes that the Arizona Supreme Court found Ginsburg's opinion consistent with "clearly established" federal law in Victor, Cage, and Sullivan. -8Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 8 of 14

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Further, the Court finds that Petitioner cites no "clearly established" federal law that contradicts the Arizona Supreme Court decision in State v. Portillo. Petitioner only makes an analogy to Cage which the Court does not find persuasive. Specifically, Petitioner arrives at a similar holding to Cage, that due process was violated, without noting any relevant facts Petitioner's case has in common with Cage. Also, the Court does not find Petitioner's citation of Arizona v. King persuasive because the court in King was analyzing jury instructions with respect to a clear and convincing standard not a reasonable doubt standard. Indeed, the Arizona Court of Appeals found that the "firmly convinced" language could be used for a reasonable doubt standard without prejudicing a jury. Arizona v. Jones, 182 Ariz. 243, 246, 895 P.2d 1006, 1009 (Ariz. Ct. App. 1995). The Jones decision directly addressed the "firmly convinced" determination in the King case by stating, "it is entirely possible for two seemingly consistent phrases to take on different connotations depending on the context in which they are used." Id. (citing Francis v. Franklin, 471 U.S. 307, 315 (1985)). In the Francis decision the Supreme Court held: If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Francis 471 U.S. at 315. The Court finds that Petitioner's jury instruction is of the type

18 described by the Supreme Court in Francis. The Court, therefore, considers Petitioner's jury 19 instruction in the context of a reasonable doubt instruction, that is, as Justice Ginsburg noted 20 in Victor, as "juxtaposed" with the caveat that the jury must acquit if there is a "real 21 possibility" of innocence. When considering the instruction in this context, the Court is not 22 persuaded by Petitioner's argument that the "firmly convinced" language prejudiced the jury. 23 In sum, Petitioner cites no "clearly established" federal law that contradicts the 24 decision in State v. Portillo nor does Petitioner persuade the Court that the jury instruction 25 prejudiced the jury. Thus, the Court agrees with the Magistrate Judge's recommendation that 26 the jury instruction approved of by the Arizona Court of Appeals is not contrary to, or an 27 unreasonable application of, "clearly established" federal law. 28 -9Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 9 of 14

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C.

Ground Two: Ineffective Assistance of Counsel Claim

As stated previously, with respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2), this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law" or was based on an unreasonable determination of the facts. See Lockyer, 538 U.S. at 75. A federal court may not "secondguess a state court's fact-finding process unless, after review of the state court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (citing Lockyer, at 538 U.S. at 75). The Ninth Circuit identified three types of unreasonable factual determinations: (1) those where the court should have made a finding of fact, but did not; (2) those where the state court misapprehends the legal standard, and that misapprehension affects the fact-finding process; and, (3) those where the court uses a flawed fact-finding process. Taylor, 366 F.3d at 1001. The Magistrate Judge begins by noting that the parties do not dispute that the Superior Court applied the correct standard for ineffective assistance of counsel claims. (R&R at 21.) The Magistrate Judge notes that the Superior Court essentially used the standard set out by Strickland v. Washington, 466 U.S. 668 (1984) which states, "[a]n ineffective assistance claim has two components: (1) a petitioner must show that counsel's performance was deficient, and (2) that the deficiency prejudiced the defense." (R&R at 21-22.) Therefore, the Court agrees with the Magistrate Judge that the Superior Court applied the correct standard for evaluating Petitioner's ineffective assistance of counsel. Since the Arizona Court of Appeals denied Petitioner's Petition for Review without comment, the Magistrate Judge correctly notes that the Court must look to the last reasoned decision of the state court directly addressing the issue. (Id. at 21) (citing Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000)). The Magistrate Judge notes that the Superior Court found the following facts when addressing Petitioner's ineffective counsel claim:

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[w]hen interrogated by the police, [Petitioner] claimed that he was not present when the crimes occurred and that he did not even know [co-Defendant]. That was the basis for [Petitioner's] defense throughout these proceedings. [B]ecause it is clear that the withdrawal of the theft instruction was consistent with that strategy, the Court can draw no conclusion other than that [Petitioner] has failed to establish that trial counsel's representation was deficient. (R&R at 22; Doc. #31, Exh. L at 2.)

5 The Magistrate Judge then evaluates whether the Superior Court's findings were 6 unreasonable. (R&R at 22.) Specifically, the Magistrate Judge addresses Petitioner's two 7 arguments: (1) that the Superior Court erred in finding that the defense counsel based his 8 strategy on Petitioner's initial statement (where he denied his presence at the scene of the 9 crime) to authorities and (2) that the Superior Court ignored facts that would have supported 10 (and obligated defense counsel to pursue) a theft instruction. (Id.) 11 In Petitioner's first argument, he cites testimony from the evidentiary hearing where 12 defense counsel stated that there was no tactical reason for the withdrawal of the theft 13 instruction and that it was due to mental and physical exhaustion. (R&R at 23; Doc. #38 at 14 29.) The Magistrate Judge notes, that at the same evidentiary hearing, defense counsel 15 admitted that he did not present facts during trial to support a theft instruction and that he 16 considered adding the instruction merely as a "flag to the jury." (R&R at 23; Doc. #39, ER 17 3 at 11.) In addition, the Magistrate Judge cites several instances in the trial record where 18 defense counsel acted in a manner consistent with the strategy that placed Petitioner 19 somewhere else at the time of the crime. (R&R at 23.) Specifically, defense counsel 20 challenged physical evidence, in the form of fingerprints and footprints, placing Petitioner 21 at the scene of the crime. (Id. at 23-24.) Also, Magistrate Judge notes that if defense counsel 22 argued theft, there was a danger of allowing evidence of prior bad acts to show intent. (Id. 23 at 25) (citing Ariz. R. Evid. 404(b)). Specifically, there was prior evidence of Petitioner 24 attempting a similar armed robbery with the co-defendant just twelve days prior to being 25 arrested for the charged offense. (R&R at 25.) Thus, the Magistrate Judge concludes that the 26 Superior Court's findings of fact related to the defense counsel's strategy were not 27 unreasonable. 28 - 11 Case 2:02-cv-02347-JAT Document 47 Filed 08/10/2005 Page 11 of 14

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In regards to his second argument, Petitioner concedes in his Petition for Writ of Habeas Corpus, that the Supreme Court only mandates that a lesser instruction be given when evidence is present at trial to support it. (R&R at 24; Doc. #38 at 6 (citing Beck v. Alabama, 477 U.S. 625 (1980)). Petitioner argues that such evidence exists in the form of defense counsel's opening statement and the testimony of a defense witness. (R&R at 24.) Defense counsel stated in opening, "we are not going to contest the fact that the fingerprints were found inside that truck-or the palm prints either." (Id. at 24; Doc. # 31, Exh. S at 27.) Petitioner claims this statement contradicts a theory which places him somewhere else at the scene of the crime and instead supports a theft instruction. (R&R at 24.) However, the Magistrate Judge notes that defense counsel's statement, when taken in context, is still consistent with the strategy denying Petitioner's presence at the scene of the crime. (Id.) Specifically, defense counsel did not admit the prints got on the truck at the scene of the crime, but rather argued in trial that there was no evidence linking Petitioner's prints to the scene of the crime, so that they easily could have gotten there at a different time and place. (Id.; Exh. S at 56-58.) Also, Petitioner cites the defense counsel's use of the testimony of a witness that claimed the co-defendant admitted to killing the victim and then fingering a man running up the alley to rob the victim. (R&R at 24-25.) Again, Petitioner claims this supports a theft instruction and contradicts a strategy where Petitioner was not present at the scene of the crime. (R&R at 24.) The Magistrate Judge concludes it is not unreasonable to view defense counsel's use of this testimony as primarily to challenge the credibility of the codefendant and not to support a theft instruction. (Id. at 25.) Thus, the Magistrate Judge finds that the Superior Court did not misapprehend the evidence. In his objection to the R&R, Petitioner reiterates his argument that the evidence presented by the state, standing alone, warranted a theft instruction. (PO at 4.) Petitioner cites Arizona Supreme Court case law, along the same lines as the Beck case cited by the Magistrate Judge, outlining the legal requirement that a lesser included offense must be given if it is a necessarily included fact of the greater offense, and the evidence supports the

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instruction. (Id.) (citing State v. Celaya,3 135 Ariz. 248, 660 P.2d 849 (1983)). Specifically, Petitioner argues that, by leaving out the theft instruction, defense counsel left the jury with no middle ground to decide the case, that is, the jury had to either fully acquit Petitioner or convict him of first degree murder. (PO at 4.) Thus, Petitioner concludes that the Superior Court unreasonably found that defense counsel withdrew the theft instruction for tactical reasons. The Court finds there is substantial evidence in the record to support the reasonableness of the Superior Court's findings of fact. The trial record is replete with defense counsel statements that clearly support a strategy which places Petitioner somewhere else at the time of the crime. (Doc. #31, Exh. S at 18-19, 56, 58.) However, Petitioner has not pointed to any portions of the record that clearly support a theft strategy and not the defense's strategy. In addition, if defense counsel made arguments supporting the theory of theft (which would have been required to request the theft instruction), it would have allowed the 404(b) evidence of Petitioner's past armed robbery attempt, potentially dooming Petitioner's case. Certainly defense counsel was aware of this fact and must be presumed to have planned his strategy accordingly. Further, Petitioner's objections to the R&R are not persuasive. Again, the Court does not find any evidence in the record that support a theft instruction rather than the strategy presented by defense counsel that Petitioner was not present at the scene of the crime. Also, Petitioner's claim that the Superior Court unreasonably found that defense counsel withdrew the theft instruction for tactical reasons is not entirely accurate. According to the record, the Superior Court stated, "it is clear that withdrawal of the theft instruction was consistent with [defense's] strategy." (Doc. #31, Exh. L at 2) (emphasis added). The Superior Court did not
3

Petitioner cites this case in error as State v. Celaya, 135 Ariz. 479, 675 P.2d 738 (1983). In addition, Petitioner cites a second case, State v. Mitchell, 138 Ariz. 479, 625 P.2d 849 (1983), as coming from the Arizona Supreme Court, when in fact that case is from the Arizona Court of Appeals, Division 2. The Arizona Supreme Court denied review of the Mitchell case. The correct cite for the case is State v. Mitchell, 138 Ariz. 478, 675 P.2d 738 (Ariz. Ct. App. 1983). - 13 Document 47 Filed 08/10/2005 Page 13 of 14

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find that the decision was made by defense counsel for tactical reasons, but only that the decision was sound with respect to the strategy used throughout trial and therefore not deficient. While Petitioner may disagree with the strategy in hindsight, this does not mean that the defense counsel is subject to an ineffective assistance of counsel claim for acting deficiently and causing prejudice. The Court finds that the Superior Court's finding of fact was not unreasonable with respect to defense counsel withdrawing the theft instruction. In conclusion, the Court agrees with the Magistrate Judge's's recommendation that the Petition for Writ of Habeas Corpus should be denied. Under ground one, Petitioner's claim, assuming it was fully exhausted, still fails on the merits because the Arizona Supreme Court's decision in State v. Portillo, relied upon by the Arizona Court of Appeals in upholding the jury instructions, was not contrary to "clearly established" federal law. Under ground two, Petitioner's claim also fails because the Superior Court did not unreasonably find that defense counsel withdrew the theft instruction IV. CONCLUSION Accordingly, IT IS ORDERED that the Court adopts the Magistrate Judge's Report and Recommendation (Doc. #45); IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. #1) is denied with prejudice. DATED this 10th day of August, 2005.

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