Djerf v. Ryan, et al

Filing 128

IT IS ORDERED that Claim 3 is DENIED as procedurally barred, that Claim 5(2) is DENIED as moot, and that Claim 2 is DENIED; IT IS FURTHER ORDERED DENYING a certificate of appealability as to Claims 2, 3, and 5(2). See Ninth Circuit Order 112 re: 08-99027 as to 101 Notice of Appeal. Signed by Senior Judge James A Teilborg on 04/04/17. (KAS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Kenneth Djerf, Petitioner, 10 11 v. 12 No. CV-02-00358-PHX-JAT DEATH PENALTY CASE Charles L. Ryan, et al., 13 ORDER Respondents. 14 15 This matter is before the Court on limited remand from the Ninth Circuit Court of 16 Appeals (the “Ninth Circuit”). (See Doc. 112). The Ninth Circuit has ordered this Court 17 to consider, in light of intervening law, including Martinez v. Ryan, 566 U.S. 1 (2012), 18 Claim 3, alleging ineffective assistance of counsel (“IAC”) during the 15 months 19 preceding Petitioner Richard Djerf’s guilty pleas, and Claim 5(2), alleging IAC by 20 appellate counsel in failing to raise the claim that Petitioner’s guilty pleas were invalid 21 because the trial court failed to advise him of the right to effective counsel at trial. 22 (Id. at 1). Additionally, in light of the state court’s subsequent ruling that the claim was 23 raised on direct appeal, the Ninth Circuit ordered reconsideration of Claim 2, alleging 24 that Petitioner’s guilty pleas were invalid because the trial court failed to adequately 25 advise him of the right to effective assistance of counsel at trial. (Id. at 2). 26 The Court ordered supplemental briefing to address whether cause exists under 27 Martinez to excuse the procedural default under Claims 3 and 5(2), and whether 28 Petitioner is entitled to habeas relief under 28 U.S.C. § 2254 on Claims 2, 3, or 5(2). 1 (Doc. 113 at 2). The Court also ordered Petitioner to include any requests for evidentiary 2 development with the supplemental briefing. (Id.). 3 Petitioner filed a supplemental brief addressing the applicability of Martinez to 4 Claim 3, arguing that post-conviction relief (“PCR”) counsel acted ineffectively in 5 litigating the claim in state court and requesting evidentiary development on the 6 procedural default of these claims. 1 (Doc. 124). Petitioner’s supplemental brief also 7 argued that Petitioner was entitled to habeas relief on Claim 2. (Id. at 37–40). 8 Respondents filed a response, (Doc. 125), and Petitioner filed a reply, (Doc. 127). 9 I. PROCEDURAL BACKGROUND 2 10 In September 1993, a Maricopa County Grand Jury indicted Petitioner for four 11 murders, burglary, kidnapping, sexual assault, aggravated assault, attempted arson, theft, 12 and misconduct involving weapons. The trial court appointed two attorneys to represent 13 Petitioner, Michael Vaughn and Alan Simpson. On February 15, 1995, Petitioner filed a 14 pro se motion for change of counsel, asking the court to allow him to proceed pro se for 15 all future proceedings. At a previously scheduled hearing for pretrial motions, the trial 16 judge declined to rule on the motion, determined that Petitioner should think about his 17 decision for a few days, and scheduled a hearing on Petitioner’s motion for the following 18 week. 19 At the hearing on Petitioner’s motion, Petitioner informed the court that he had 20 “very thoroughly” discussed the matter with counsel. (RT 2/23/95 at 4). The court then 21 inquired why Petitioner wanted to remove Mr. Vaughn and Mr. Simpson from his case 22 and represent himself. (Id. at 11). Petitioner advised the court that he was unhappy with 23 24 25 26 1 The Ninth Circuit also remanded this case for reconsideration of Claim 5(2) in light of Martinez. (Doc. 112 at 1). However, both parties agree that the trial court’s order, finding that Petitioner’s appellate counsel raised the issue underlying Claim 2 on direct appeal, renders Claim 5(2) moot. (Docs. 124 at 7–8 n.2; 125 at 27 n.7). 2 27 28 This Court relies partly on the facts as stated by the Arizona Supreme Court decision. See State v. Djerf, 959 P.2d 1274 (1998). Notwithstanding Petitioner’s objection to the Court giving deference to this statement of the facts, (Doc. 127 at 2–3), Petitioner fails to identify any fact stated by the Arizona Supreme Court that Petitioner disagrees with, or where in the record the Court may find any hypothetical inaccuracy. -2- 1 his representation because counsel had not been keeping him advised of what was 2 happening in his case and that “I just assume that I can do this myself.” (Id.). The trial 3 court strongly disagreed that Mr. Vaughn and Mr. Simpson were not representing him 4 well, noting their interviews with many witnesses, 3 their work on the consolidated DNA 5 hearing, and their handling of other experts in fingerprints and handwriting analysis. (Id. 6 at 11–12). Petitioner indicated that he understood all the work his counsel had put into his 7 case. (Id.). Other than the alleged lack of communication, Petitioner did not express any 8 other examples of ineffectiveness. (RT 2/27/95; 2/23/95). The court held that Petitioner 9 voluntarily, knowingly, and intelligently waived his right to counsel. 10 The prosecution filed a motion to determine Petitioner’s competence to waive 11 counsel and conduct his own defense. Petitioner consented to such an evaluation to 12 “remove any doubt as to . . . competence.” The trial court ordered a prescreening 13 evaluation to determine whether a complete competency examination was warranted. Dr. 14 Jack Potts evaluated Petitioner and pronounced him competent. The trial court reaffirmed 15 its finding that Petitioner be allowed to proceed pro se. 16 Petitioner decided to enter into a plea agreement with the State, pleading guilty to 17 four counts of first degree murder. The agreement expressly stated that no limits would 18 be placed on sentencing, and Petitioner could be sentenced to death for any or all of the 19 murder counts. In exchange, the State agreed to dismiss the remaining criminal counts. At 20 the plea hearing, the trial court informed Petitioner of certain constitutional rights being 21 relinquished under the plea agreement, acknowledged Dr. Potts’s prescreening report, 22 reaffirmed the finding of competency, and concluded that Petitioner’s guilty pleas were 23 made knowingly, intelligently, and voluntarily. 24 Petitioner subsequently withdrew his waiver of counsel and accepted 25 representation for the remainder of the sentencing proceedings. Petitioner requested and 26 received the appointment of three mental health experts, a psychologist, a 27 3 28 At a subsequent status conference, a record of witness interviews was made indicating that counsel for Petitioner personally interviewed more than 50 witnesses, with some witness interviews lasting multiple days. (RT 9/8/95 at 13–14). -3- 1 neuropsychologist, and a neurologist. Ultimately, Petitioner chose not to submit any 2 reports from his mental health experts. The trial court conducted aggravation and 3 mitigation hearings and imposed the death sentence on Petitioner on each of the four 4 counts. On direct appeal, the Arizona Supreme Court affirmed, see Djerf, 959 P.2d 1274, 5 and the U.S. Supreme Court denied a petition for writ of certiorari, Djerf v. Arizona, 6 525 U.S. 1024 (1998). 7 In 2000, the Arizona Supreme Court issued the mandate in Petitioner’s case and 8 appointed PCR counsel, Jamie McAlister. (Doc. 95 at 6). PCR counsel filed an initial 9 petition. (Id.). Counsel requested, and the court granted, the appointment of a mental 10 health expert. (Id.). Counsel filed an amended PCR petition. (Id.). Counsel chose not to 11 include any mental health report in support of the amended petition. (Id.). After the 12 amended petition was filed, Petitioner’s mental health expert conducted additional 13 testing, but the results of such testing were not submitted to the court. (Id.). The trial 14 court summarily denied PCR relief. (Id.). The Arizona Supreme Court denied a petition 15 for review. (Id.). 16 Petitioner filed a preliminary Petition for Writ of Habeas Corpus in this Court on 17 February 27, 2002, (Doc. 1), and an amended petition on July 29, 2003, (Doc. 55). In two 18 subsequent orders, filed in 2005 and 2008, the Court ruled that three claims—relevant to 19 the instant remand—were technically exhausted but procedurally defaulted because 20 Petitioner no longer had an available state remedy: (1) Claim 3, alleging IAC of 21 Petitioner’s trial counsel during the approximately fifteen months they represented him 22 during pre-trial proceedings, (Doc. 94 at 5–8); (2) Claim 2, alleging that Petitioner’s 23 guilty plea was not knowing, intelligent, and voluntary because the trial court did not 24 adequately inform him that by pleading guilty, he was forfeiting his right to proceed to 25 trial represented by competent counsel, (Doc. 95 at 20); and (3) Claim 5(2), alleging that 26 Petitioner’s appellate counsel performed ineffectively by failing to raise that the trial 27 court inadequately advised Petitioner that he had the constitutional right to proceed to 28 trial with competent counsel, (id. at 28). Thus, the Court did not consider Claims 3, 2, or -4- 1 5(2) on the merits. 2 On March 17, 2009, Petitioner filed a successive notice of PCR, which the state 3 court dismissed on April 6, 2009. (Doc. 124-1 at 4). The trial court held that Claim 2 was 4 raised on direct appeal to the Arizona Supreme Court, in contrast to this Court’s earlier 5 order. (Compare id. at 4, with Doc. 95 at 20). The Arizona Supreme Court denied review 6 on September 23, 2009. (Doc. 125 at 7). 7 While Petitioner’s appeal from this Court’s denial of habeas relief was pending, 8 the U.S. Supreme Court decided Martinez v. Ryan, holding that, where a Petitioner must 9 raise IAC claims in an initial PCR proceeding, failure of counsel in that proceeding to 10 raise a substantial trial IAC claim may provide cause to excuse the procedural default of 11 that claim. 566 U.S. at 17. Petitioner subsequently filed a motion seeking a partial remand 12 of his appeal in light of Martinez. (Doc. 124 at 2). The Ninth Circuit granted Petitioner’s 13 motion and remanded this case for reconsideration of Claim 3 in light of Martinez, as 14 well as Claim 2 in light of the state court’s subsequent ruling. (Doc. 112). 15 II. CLAIM 3 16 In Claim 3, Petitioner contends that both trial counsel rendered IAC during the 17 approximately fifteen months they represented him during pre-trial proceedings. 18 Petitioner argues that the Court should excuse Claim 3’s procedural default because there 19 is a reasonable probability that PCR would have been granted had PCR counsel not 20 performed deficiently. (Doc. 124 at 7–40). Respondent rejoins that Petitioner has failed to 21 show that PCR counsel was ineffective for failing to raise a meritless claim. 22 (Doc. 125 at 15–27). 23 A. Exhaustion of State Remedies Legal Standard 24 A state prisoner is generally not entitled to habeas relief in federal court unless he 25 has first exhausted all available state law remedies either on direct appeal or through 26 collateral proceedings. 28 U.S.C. § 2254(b) (2012). To exhaust a claim, a petitioner must 27 “fairly present” it to the state courts, “thereby alerting [the state courts] to the federal 28 nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). Failure to exhaust federal -5- 1 claims in state court results in procedural default of those claims for habeas purposes if 2 “the court to which the petitioner would be required to present his claims in order to meet 3 the exhaustion requirement would now find the claims procedurally barred.” Coleman v. 4 Thompson, 501 U.S. 772, 735 n.2 (1991). 5 However, because the doctrine of procedural default is based on comity—versus 6 jurisdiction—federal courts retain the power to consider the merits of procedurally 7 defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). Habeas review of a defaulted claim 8 is generally barred unless a petitioner “can demonstrate cause for the default and actual 9 prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750. 10 Ordinarily, “cause” to excuse a default exists if a petitioner can demonstrate that “some 11 objective factor external to the defense impeded counsel’s efforts to comply with the 12 State’s procedural rule.” Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 13 (1986)). In Coleman, the Supreme Court held that IAC in PCR proceedings does not 14 establish cause for the procedural default of a claim. Id. 15 16 17 In Martinez v. Ryan, however, the Court established a “narrow exception” to the rule announced in Coleman. The Court explained: 20 Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 21 566 U.S. at 17; see also Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (noting that 22 Martinez allows a federal habeas court to find “cause” if “the claim of ‘ineffective 23 assistance of trial counsel’ was a ‘substantial’ claim [and] the ‘cause’ consisted of there 24 being ‘no counsel’ or only ‘ineffective’ counsel during the state [PCR] proceeding” 25 (quoting Martinez, 566 U.S. at 17)). 18 19 26 27 28 To demonstrate cause and prejudice sufficient to excuse the procedural default, a petitioner must make two showings: First, to establish “cause,” he must establish that his counsel in the state [PCR] proceeding was ineffective under the -6- 1 2 3 standards of Strickland. Strickland, in turn, requires him to establish that both (a) [PCR] counsel’s performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the [PCR] proceedings would have been different. 4 5 Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by 6 McKinney v. Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc) (quotation marks and 7 citations omitted); see also Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015); 8 Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016). Determining whether there 9 exists a reasonable probability of a different outcome “is necessarily connected to the 10 strength of the argument that trial counsel’s assistance was ineffective.” Clabourne, 11 745 F.3d at 377–78. Second, to establish “prejudice,” the petitioner must establish that 12 his “underlying ineffective-assistance-of-trial-counsel [(“IATC”)] claim is a substantial 13 one, which is to say that the prisoner must demonstrate that the claim has some merit.” 14 Id.; see also Martinez, 566 U.S. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003) 15 (“Miller-El I”)). 16 IAC claims are governed by the principles set forth in Strickland v. Washington. 17 466 U.S. 668, 674 (1984). The inquiry under Strickland is highly deferential, and “every 18 effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the 19 circumstances of counsel’s challenged conduct, and to evaluate the conduct from 20 counsel’s perspective at the time.” Id. at 689; see also Cox v. Ayers, 613 F.3d 883, 893 21 (9th Cir. 2010). In Strickland, the Supreme Court held that there are two components to 22 an IAC claim: “deficient performance” and “prejudice.” 466 U.S. at 687. 23 “Deficient performance” in this context means unreasonable representation falling 24 below professional norms prevailing at the time of trial. Id. at 688–89. To satisfy this 25 prong, a petitioner must overcome a “strong presumption” that his lawyer “rendered 26 adequate assistance and made all significant decisions in the exercise of reasonable 27 professional judgment.” Id. at 694. Further, the petitioner “must identify acts or 28 omissions of counsel that are alleged not to have been the result of reasonable -7- 1 professional judgment.” Id. The court must then “determine whether, in light of all the 2 circumstances, the identified acts or omissions were outside the range of professionally 3 competent assistance.” Id. In its analysis, the court “cannot ‘second-guess’ counsel’s 4 decisions or view them under the ‘fabled twenty-twenty vision of hindsight.’” Edwards v. 5 Lamarque, 475 F.3d 1121, 1127 (9th Cir. 2007) (quoting LaGrand v. Stewart, 6 133 F.3d 1253, 1271 (9th Cir. 1998)). “The test has nothing to do with what the best 7 lawyers would have done. Nor is the test even what most good lawyers would have done. 8 We ask only whether some reasonable lawyer at the trial could have acted, in the 9 circumstances, 10 as defense counsel acted at trial.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev’d on other grounds, 525 U.S. 141 (1998). 11 To meet his burden of showing Strickland “prejudice,” the petitioner must 12 affirmatively “show that there is a reasonable probability that, but for counsel’s 13 unprofessional errors, the result of the proceeding would have been different. A 14 reasonable probability is a probability sufficient to undermine confidence in the 15 outcome.” Strickland, 466 U.S. at 694; see also Lockhart v. Fretwell, 506 U.S. 364, 372 16 (1993) (noting that the “prejudice” component “focuses on the question of whether 17 counsel’s deficient performance renders the result of the trial unreliable or the proceeding 18 fundamentally unfair”). 19 B. 20 In remanding this case, the Ninth Circuit concluded, for purposes of remand, that 21 the claims were “substantial.” (Doc. 112 at 2). Thus, this Court is to assume that there is 22 “some merit” to the contention that both trial counsel performed deficiently and that this 23 caused prejudice—from the Coleman cause-and-prejudice standard. See Miller-El I, 24 537 U.S. at 335–38. In Runningeagle v. Ryan, the Ninth Circuit set forth the framework 25 for reviewing claims that are assumed substantial. 825 F.3d at 983. First, the court 26 determines whether PCR counsel was deficient under the Strickland standard. Id. at 983– 27 84. Second, the court determines whether PCR counsel’s deficiency was prejudicial, 28 which requires the underlying IATC claim to be prejudicial under Strickland. Id. at 984– Scope of Remand -8- 1 88 (assuming both PCR and trial counsel’s performances were deficient to analyze 2 whether PCR counsel’s deficiency was prejudicial). If the court determines either that 3 PCR counsel was not deficient or—assuming PCR counsel was deficient—PCR 4 counsel’s deficiency was not prejudicial, Petitioner has failed to show cause for the 5 defaulted claim. Id. at 984, 988. 6 Petitioner disagrees with this framework and argues that because the Ninth Circuit 7 required this Court to assume substantiality, his only burden on remand is to show that 8 PCR counsel was ineffective. (Doc. 124 at 7). Petitioner continues that this does not 9 require analysis of the merits of Petitioner’s underlying IATC claim. (Id. at 5–7). In 10 disagreeing with the Runningeagle framework, Petitioner relies on the plurality opinion 11 in Detrich v. Ryan. See 740 F.3d 1237, 1246 (9th Cir. 2013) (en banc) (“But if a prisoner 12 were required to show that the defaulted trial-counsel IAC claims fully satisfied 13 Strickland in order to satisfy the second Martinez requirement [of Coleman prejudice], 14 this would render superfluous the first Martinez requirement of showing that the 15 underlying Strickland claims were ‘substantial.’”). The Ninth Circuit has addressed 16 Petitioner’s argument multiple times, holding that Detrich concludes that “‘prejudice’ for 17 purposes of the ‘cause and prejudice’ analysis requires only a showing that the trial-level 18 [IAC] claim was ‘substantial’ . . . [but] does not diminish the requirement . . . that 19 petitioner satisfy the ‘prejudice’ prong under Strickland in establishing ineffective 20 assistance by [PCR] counsel.” Clabourne, 745 F.3d at 377; see also Runningeagle, 21 825 F.3d at 982 n.13; Pizzuto, 783 F.3d at 1178–80. 22 Additionally, the Detrich court stated that “[a] prisoner need not show actual 23 prejudice resulting from his PCR counsel’s deficient performance, over and above his 24 required showing that the [IATC] claim be ‘substantial’ under the first Martinez 25 requirement.” 740 F.3d at 1245–46 (emphasis added). While the Ninth Circuit’s remand 26 order stated that the Court was to assume ‘substantiality,’ it made no mention that 27 Petitioner had already shown substantiality. Indeed, neither this Court nor the Ninth 28 Circuit has determined that Petitioner has made any “required showing” of substantiality. -9- 1 Thus, while this Court is assuming substantiality for purposes of Martinez’s substantiality 2 requirement, because substantiality has not actually been shown, this Court must, for the 3 first time, consider the prejudice requirement for PCR counsel’s performance that would 4 have been met if substantiality had actually been shown. Accordingly, the portion of 5 Detrich cited by Petitioner is inapplicable to the posture of this case. 6 Finally, the Ninth Circuit has often examined the merits of an underlying IATC 7 claim when analyzing whether appellate or PCR counsel’s performance was deficient 8 under Strickland, rather than under the Strickland prejudice analysis. See, e.g., Turner v. 9 Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (“A failure to raise untenable issues on 10 appeal does not fall below the Strickland standard.” (citing Featherstone v. Estelle, 11 948 F.2d 1497, 1507 (9th Cir. 1991))); Pollard v. White, 119 F.3d 1430, 1437 12 (9th Cir. 1997) (“We conclude that [the petitioner’s] counsel was not deficient for not 13 arguing” a meritless claim.); Miller v. Keeney, 882 F.2d 1428, 1435 (9th Cir. 1989) 14 (“Because [the petitioner] had only a remote chance of obtaining reversal based upon the 15 admission of evidence of the hand wiping incident, he cannot satisfy either of the 16 Strickland prongs: Appellate counsel was not ineffective for failing to raise the issue and 17 [the petitioner] suffered no prejudice on account of counsel’s performance.”). Even if 18 Detrich’s framework applied to this remand, it would still require analysis of the 19 underlying IATC claim’s merits to determine whether PCR counsel was deficient under 20 Strickland. Thus, under the Ninth Circuit’s remand order, the Court must still examine 21 the merits of the underlying IATC claim before excusing any procedural default. See 22 Runningeagle, 825 F.3d at 982 n.13 (“[T]here is no meaningful difference between 23 finding a claim in default and reviving it but denying it on its merits.”). 24 25 C. Analysis 1. Deficiency and Prejudice of PCR Counsel’s Performance 26 Petitioner argues that Ms. McAlister’s performance was ineffective because she 27 lacked proper qualifications, was mentally ill during representation, failed to include 28 Claim 3 in the PCR petition, and committed other errors in preparing the PCR petition. - 10 - 1 2 (Doc. 124 at 10–19). a. State Qualifications 3 Petitioner first argues that Ms. McAlister performed deficiently because she did 4 not meet some of the criteria listed in Arizona Rule of Criminal Procedure 6.8 when the 5 Arizona Supreme Court first appointed her as lead counsel in an unrelated 1998 capital 6 PCR proceeding. (Doc. 124 at 10–12). Thus, Petitioner continues, any decision made by 7 Ms. McAlister during Petitioner’s PCR proceedings was inherently unreasonable. (Id.). 8 As a result, Petitioner appears to argue that any decision made by Ms. McAlister during 9 Petitioner’s PCR proceeding was inherently unreasonable. (See id. at 15). Respondent 10 rejoins that this argument is irrelevant to Ms. McAlister’s performance in Petitioner’s 11 PCR proceedings. (Doc. 125 at 16). 12 Arizona Rule of Criminal Procedure 6.8 sets forth eligibility criteria for the 13 appointment of counsel in a capital case. In 1998, Rule 6.8 required PCR counsel to have: 14 (1) “practiced in the area of state criminal litigation for three years immediately 15 preceding the appointment”; (2) “demonstrated the necessary proficiency and 16 commitment which exemplify the quality of representation appropriate to capital cases”; 17 and (3) “attended and successfully completed, within one year of appointment, at least 18 twelve hours of relevant training or educational programs in the area of capital defense,” 19 among other requirements. See Ariz. R. Crim. P. 6.8(a), (c) (1998). Rule 6.8 also 20 included a bypass from these formal requirements “providing that the attorney’s 21 experience, stature and record enable the [Arizona Supreme Court] to conclude that the 22 attorney’s ability significantly exceeds the standards set forth in this rule.” Id. 6.8(d). 23 In 1998, the Indigent Defense Standards Committee, which provided 24 recommendations to the Arizona Supreme Court as to counsel eligibility with Rule 6.8, 25 declined to recommend Ms. McAlister because she failed to meet the requirements of 26 Rule 6.8(c). (Docs. 124 at 12; 124-1 at 11–15). Nonetheless, the state court appointed Ms. 27 McAlister as lead counsel in a capital PCR proceeding, (Doc. 124 at 12), presumably 28 recognizing that Ms. McAlister met the requirements set forth in 6.8(d). In 2000, the state - 11 - 1 court appointed Ms. McAlister as lead counsel in Petitioner’s PCR proceedings. (Id.). 2 Petitioner does not argue that Ms. McAlister was unqualified under Rule 6.8 in 3 Petitioner’s PCR proceedings. Rather, Petitioner argues that Ms. McAlister was 4 unqualified in an unrelated proceeding that took place over a year before she was 5 appointed to Petitioner’s case. It is unclear how Ms. McAlister’s failure to meet the Rule 6 6.8(c) criteria over a year before the Arizona Supreme Court appointed her to Petitioner’s 7 case is of any relevance to her performance in Petitioner’s PCR proceedings. Further, 8 Petitioner does not argue, or provide any evidence, that Ms. McAlister did not meet Rule 9 6.8(c) when she was appointed as counsel for Petitioner’s PCR proceedings or that Ms. 10 McAlister acted deficiently in any way related to the Rule 6.8(c) criteria. However, even 11 if Ms. McAlister lacked Rule 6.8(c) qualifications when she was appointed to Petitioner’s 12 case, the Arizona Supreme Court apparently found that Ms. McAlister’s “ability 13 significantly exceed[ed] the standards set forth in [Rule 6.8(c)].” Ariz. R. Crim. P. 6.8(d). 14 b. Mental State during Representation 15 Petitioner next argues that Ms. McAlister performed deficiently because she was 16 “seriously mentally ill during her representation of Petitioner.” (Doc. 124 at 12). Thus, 17 Petitioner continues, any decision made by Ms. McAlister during Petitioner’s PCR 18 proceedings was inherently unreasonable. (Id. at 15). Petitioner bases this argument on 19 psychologist records that were allegedly part of the record in the Arizona Supreme 20 Court’s disciplinary proceedings involving Ms. McAlister’s representation of clients 21 unrelated to Petitioner’s case. (Id. at 13–14). The Court previously denied Petitioner’s 22 motion to obtain sealed psychological reports involving Ms. McAlister because the Court 23 held that the Strickland inquiry involves “an objective assessment of [an attorney’s] 24 performance”—not a subjective inquiry into an attorney’s mental state. (Doc. 123 25 (emphasis added)). Petitioner’s proffered evidence reaffirms the Court’s ruling that Ms. 26 McAlister’s mental state is irrelevant to the Court’s inquiry. 27 The psychological report describes Ms. McAlister’s long history of depression, 28 bipolar disorder, and alcoholism, among other ailments. (Doc. 124-1 at 64–65). Around - 12 - 1 1998, Ms. McAlister suffered from a “flair [sic] up of her chronic, fibromyalgia 2 condition.” (Id. at 66). Apart from Ms. McAlister’s financial indiscretions—which 3 formed the basis of the disciplinary proceedings—the report does not indicate that Ms. 4 McAlister’s work product suffered from her mental condition. The only circumstantial 5 signs that Ms. McAlister’s work product potentially suffered were her trouble sleeping 6 and elevated stress levels. (Id.). While the report notes that, in September 2000, a 7 physician diagnosed Ms. McAlister as suffering from a “psychotic break,” it does not 8 describe the meaning of that term as it relates to Ms. McAlister. (Id.). The report 9 similarly does not disclose the timing of the “psychotic break.” (Id.). Petitioner also cites 10 to a court filing by one of Ms. McAlister’s former clients, who was unrelated to 11 Petitioner’s case. (Doc. 124 at 14–15). While the former client’s filing includes numerous 12 complaints and disagreements with Ms. McAlister’s performance, it does not reveal any 13 information about Ms. McAlister’s mental state at the time she represented Petitioner. 14 (Id.). 15 Petitioner argues that this evidence shows Ms. McAlister’s decisions while 16 representing Petitioner were inherently unreasonable. (Id. at 12–15). For support, 17 Petitioner cites to Justice Stevens’s dissent in Bell v. Cone, which recognizes that the 18 mental health of an attorney may be relevant in determining whether an attorney 19 performed deficiently. 535 U.S. 685, 715–16 (2002); (see Doc. 127 at 4–5). 4 In 20 particular, Justice Stevens stated that evidence from the trial attorney’s medical records 21 undercut the attorney’s explanations for various trial strategies, such as presenting “no 22 mitigation case in the penalty phase” and offering “no closing argument in the face of the 23 prosecution’s request for death.” Bell, 535 U.S. at 715–16. Justice Stevens classified 24 these trial decisions as “nothing short of incredible.” Id. at 715. Thus, Justice Stevens did 25 not believe that the attorney’s mental health rendered decisions by the attorney as per se 26 4 27 28 As Petitioner notes, the majority opinion disagreed with Justice Stevens’s factual inferences because “respondent did not present any evidence regarding his counsel’s mental health in the state-court proceedings.” Bell, 535 U.S. at 697 n.4. The majority opinion does not elaborate whether the presentation of such evidence would have influenced the holding. Id. - 13 - 1 deficient; rather, Justice Stevens used inferences from the mental health records to 2 undercut the attorney’s proffered explanations for pursuing the “incredible” decisions. Id. 3 at 715–16. 4 To the extent that Petitioner argues that Ms. McAlister provided a deficient 5 performance in the PCR proceedings simply because she suffered from depression or 6 other mental health disorders, Petitioner has failed to cite any supporting authority. See, 7 e.g., Bonin v. Calderon, 59 F.3d 815, 828–29 (9th Cir. 1995) (“[I]t is clear that a habeas 8 petitioner should not be allowed to transform what should be an inquiry into the 9 reasonableness of counsel’s performance at his trial into [a] general inquisition of defense 10 counsel’s record and reputation.”); Johnson v. Thurmer, 624 F.3d 786, 792 11 (7th Cir. 2010) (rejecting a claim that “counsel’s depression tainted his guidance at trial” 12 because the petitioner “pointed to no specific acts to establish that counsel’s problems led 13 to deficient performance, and we can find none”). Further, as the Court notes below, see 14 infra Section II(C)(1)(c), Petitioner fails to show that any decision by PCR counsel was 15 “nothing short of incredible,” such that mental health evidence would be useful in 16 discounting the presumed reasonableness (or explanations) of the attorney’s decisions. 17 c. Failure to Include Claim 3 18 Petitioner also argues that Ms. McAlister’s failure to include Claim 3 in 19 Petitioner’s state PCR petition was deficient. (Docs. 124 at 18–19; 127 at 5–7). 20 Respondent first argues that Ms. McAlister’s decision was reasonable because, by 21 pleading guilty, Petitioner “waived any claim that counsel was ineffective in matters not 22 directly connected to the guilty plea.” (Doc. 125 at 17–18). Alternatively, Respondent 23 argues that Petitioner failed to show that Claim 3 was clearly stronger than the claims Ms. 24 McAlister raised in the PCR proceedings. (Id. at 18). 25 Contrary to Respondent’s first argument, Petitioner’s guilty plea did not bar Ms. 26 McAlister from raising Claim 3 in the PCR proceedings. Under both federal and Arizona 27 law, only a “knowing and voluntary plea of guilty with benefit of competent counsel” 28 waives IAC claims. See State v. Lerner, 551 P.2d 553, 554 (Ariz. 1976); see also Mabry - 14 - 1 v. Johnson, 467 U.S. 504, 508 (1984), overruled in part on other grounds by Puckett v. 2 United States, 556 U.S. 129 (2009) (recognizing that a “voluntary and intelligent plea of 3 guilty made by an accused person, who has been advised by competent counsel, may not 4 be collaterally attacked”). Thus, because the IATC claims would have called into 5 question the competency of counsel and voluntariness of Petitioner’s plea, Ms. McAlister 6 could have reasonably raised Claim 3 in Petitioner’s PCR proceedings. 7 However, Petitioner fails to show that Claim 3 would have been “clearly stronger” 8 than the other claims raised by Ms. McAlister. See Smith v. Robbins, 528 U.S. 259, 288 9 (2000) (“Generally, only when ignored issues are clearly stronger than those presented, 10 will the presumption of effective assistance of counsel be overcome.” (quoting Gray v. 11 Greer, 800 F.2d 644, 646 (7th Cir. 1986))). The Supreme Court has held that, to meet the 12 first prong of Strickland when counsel fails to present a nonfrivolous issue, Petitioner 13 must show that the nonfrivolous issue was “clearly stronger” than issues that counsel did 14 present. Id. (reiterating that “appellate counsel who files a merits brief need not (and 15 should not) raise every nonfrivolous claim, but rather may select from among them in 16 order to maximize the likelihood of success on appeal” (citing Jones v. Barnes, 463 U.S. 17 745 (1983))) 5. 18 Here, Petitioner fails to argue what makes this claim “clearly stronger” than the 19 claims Ms. McAlister did present in the PCR proceedings. At most, Petitioner seems to 20 argue that because Ms. McAlister presented a claim that relates to trial counsel’s 21 deficiency, there is no reason why Ms. McAlister should not have also raised Claim 3. 22 (Doc. 124 at 18–19). However, this argument relies on an erroneous presumption that 23 PCR counsel must raise every nonfrivolous claim. Furthermore, as the Court discusses 24 below, Claim 3 lacks merit. See infra Section II(C)(2); see also Sexton v. Cozner, 25 5 26 27 28 In examining PCR counsel’s performance, the Court looks to analogous law applying Strickland to appellate counsel, “because like direct appeal counsel, PCR counsel is charged with raising and pursuing claims arising from a criminal trial.” Sampson v. Palmer, No. 3:11-CV-00019-LRH-WGC, 2014 WL 1308628, at *7 (D. Nev. Mar. 31, 2014), rev’d on other grounds, 628 F. App’x 477 (9th Cir. 2015). Petitioner appears to argue that the Court should distinguish the roles of PCR counsel and appellate counsel, (Doc. 127 at 4), but Petitioner provides no basis for this distinction. - 15 - 1 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to 2 raise even a nonfrivolous claim . . . so clearly we cannot hold counsel ineffective for 3 failing to raise a claim that is meritless.” (citing Knowles v. Mirzayance, 4 556 U.S. 111, 127 (2009))). d. 5 Other Alleged Errors 6 Petitioner finally argues that Ms. McAlister committed other errors—such as 7 failing to obtain trial transcripts and failing to interview either trial counsel—during her 8 representation that would render her representation presumptively deficient. (Doc. 124 9 at 16–18). On January 26, 2000, Ms. McAlister sent letters to Petitioner’s appellate 10 attorney, Lisa Martin, and Petitioner’s trial and sentencing attorneys, Mr. Vaughn and 11 Mr. Simpson, seeking a review of files maintained over the course of representation. 12 (Doc. 124-1 at 81–83). Petitioner informed Ms. McAlister that the Federal Public 13 Defender’s (the “FPD’s”) office had taken possession of his records. (Id. at 87; see also 14 id. at 85 (indicating the FPD’s office received Petitioner’s “materials” around August 15 1998)). Petitioner claims that Ms. McAlister never obtained the records held by the 16 FPD’s office. 6 (Doc. 124 at 17). Additionally, after she concluded her representation of 17 Petitioner and provided her files to the FPD’s office, Ms. McAlister did not include trial- 18 level transcripts. (Doc. 124-1 at 93). When asked about the transcripts by an FPD 19 paralegal, Ms. McAlister responded “there should’ve been transcripts from the change of 20 plea, agg/mit hearing, and sentencing” but she gave the FPD’s office “everything [she] 21 had.” (Id.). From this circumstantial evidence, Petitioner concludes that Ms. McAlister 22 “[a]pparently . . . never obtained any pleadings or transcripts from Petitioner’s trial 23 proceedings.” (Doc. 124 at 15). 24 The Court notes that Petitioner’s conclusion is not fully supported by the record. 25 First, there is no evidence or argument indicating that appellate counsel’s case file was 26 the only source for trial-level transcripts, which were available in the public record. 27 Further, Ms. McAlister’s billing records reveal that she reviewed trial counsel’s files and 28 6 The Court notes that Petitioner does not cite any evidence for this assertion. - 16 - 1 sentencing transcripts, among other trial-level documents. (Doc. 124-1 at 96–98). Finally, 2 Ms. McAlister stated, when asked whether she had the transcripts at some point, that they 3 “should have been” in the file. (Id. at 93). Thus, Petitioner asks the Court to second-guess 4 direct evidence in the record reflecting Ms. McAlister’s review of trial-level transcripts 5 and pleadings because of a hodgepodge of admittedly inconclusive and circumstantial 6 evidence. 7 Petitioner has failed to meet his burden under Strickland. See United States v. 7 Taylor, 802 F.2d 1108, 1119 (9th Cir. 1986) (holding that a petitioner’s “vague and 8 speculative assertions” failed to satisfy his burden under Strickland). 9 Petitioner also claims that Ms. McAlister was deficient for failing to meet with 10 trial counsel about their preparation in Petitioner’s case. Petitioner cites no authority that 11 indicates a reasonable PCR counsel would interview trial counsel before preparing a PCR 12 petition. Instead, Petitioner relies on Ms. McAlister’s letters to trial counsel, which 13 included requests for meetings, to argue that such interviews were necessary. (See 14 Doc. 124 at 17). Petitioner ignores that Ms. McAlister both met with Petitioner multiple 15 times and reviewed trial counsel’s files. (Doc. 124-1 at 95–98). Thus, the Court 16 concludes that Ms. McAlister might have reasonably concluded that, based on her other 17 preparation, meetings with either trial counsel were unnecessary. 18 Notwithstanding the above analysis, the Court concludes that, even if the Court 19 were to assume Ms. McAlister was deficient, Petitioner has failed to show prejudice. In 20 particular, because, as the Court noted above, Claim 3 is without merit, see infra 21 Section II(C)(2), Petitioner has failed to show prejudice from PCR counsel’s alleged 22 deficiencies. 2. 23 Deficiency and Prejudice of Trial Counsel’s Performance 24 Petitioner claims that his trial counsel “failed to act as minimally competent 25 capital defense attorneys” because they failed to effectively communicate with Petitioner, 26 conduct a thorough investigation of guilt-phase issues in Petitioner’s case, and properly 27 7 28 Despite the direct involvement by the FPD’s office in the communication underlying this circumstantial evidence, the Court is puzzled why the FPD’s office did not directly ask Ms. McAlister whether she reviewed the trial-level documents. - 17 - 1 review discovery. (Doc. 124 at 25–34). a. 2 Communication with Petitioner 3 Petitioner argues that both trial counsel performed “so little work” on his case and 4 “had such minimal communication” with him that they were deficient. (Id. at 21). 5 Petitioner cites to various illnesses, vacations, and unrelated cases that allegedly 6 monopolized both trial counsel’s time in arguing that trial counsel deprived Petitioner of 7 adequate pretrial representation. (See id. at 26). In support, Petitioner refers to the 8 Supreme Court case Powell v. Alabama. 287 U.S. 45 (1932). In Powell, on the first day 9 of a capital murder trial, a trial court had appointed an out-of-state lawyer, who had no 10 opportunity to prepare the case or familiarize himself with local procedure, to represent 11 the criminal defendants. Id. at 56. The Supreme Court held that “such designation of 12 counsel as was attempted was either so indefinite or so close upon the trial as to amount 13 to a denial of effective and substantial aid in that regard.” Id. at 53. Instead of examining 14 the actual performance of counsel at trial, the Court concluded that, under the 15 circumstances, there was a remote likelihood that counsel could provide effective 16 assistance so the trial was inherently unfair. Id. 17 Here, unlike the attorney in Powell, both trial counsel performed substantial work 18 on Petitioner’s case. For example, trial counsel interviewed “more than 50 witnesses,” 19 with some interviews occurring “over multiple days.” (Doc. 125 at 24). Trial counsel also 20 attended a nearly daylong review of evidence, filed multiple motions, and “tried to 21 negotiate” on behalf of Petitioner. (Id.). Petitioner did not dispute the work trial counsel 22 performed. (Id. at 25). Further, the trial judge repeatedly recognized the significant 23 amount of work trial counsel performed. (See, e.g., id. at 20, 23–24). Thus, the 24 performance of both trial counsel stands in stark contrast to the performance of counsel in 25 Powell. 26 Petitioner also cites to the Ninth Circuit case Crandell v. Bunnell. 25 F.3d 754 27 (9th Cir. 1994) (per curiam). In Crandell, a public defender was appointed to represent 28 the petitioner. Id. at 754. Despite numerous attempts to contact his attorney, the petitioner - 18 - 1 was moved to the “pro per” section of the jail because he was told he did not have an 2 attorney. Id. at 755. After months of the attorney failing to perform work on his case, the 3 petitioner sought to represent himself during his capital proceedings. Id. at 754–55. The 4 Ninth Circuit held that the petitioner stated a viable claim of ineffective assistance of 5 counsel. Id. at 755. 6 Here, unlike the petitioner in Crandell, Petitioner stated that he both knew of and 7 understood that his attorneys had done a considerable amount of work on his case. 8 (Doc. 125 at 20, 22). Yet, despite this understanding, Petitioner insisted upon 9 representing himself because his counsel were not sufficiently communicating with him. 10 (Id. at 20). Further, Petitioner’s contention that his trial counsel failed to consult with him 11 “about any aspect of the case” is overstated and contradicted by the record. (Doc. 124 12 at 29 (emphasis added)). For example, Petitioner states that “[b]etween July 1994 and 13 February 1995 . . . lead counsel [Mr.] Vaughn failed to . . . inform [Petitioner] of the 14 progress of his case.” (Id. at 25). Yet, in Petitioner’s February 1995 letter to the trial 15 court, he stated that, since July 1994, he had spoken with Mr. Vaughn multiple times 16 “over the phone and at court.” (See id. at 21). 17 Although Mr. Vaughn did not make frequent personal visits to Petitioner, 18 Petitioner fails to cite any case law that would render a lack of face-to-face meetings to 19 be constitutionally deficient. See, e.g., United States v. Molina, 934 F.2d 1440, 1448 20 (9th Cir. 1991) (holding that, standing alone, an attorney’s failure to meet with his client 21 more than four short meetings did not constitute constitutionally deficient performance); 22 see also Morris v. Slappy, 461 U.S. 1, 13–14 (1983) (holding that the Sixth Amendment 23 requires only competent representation and does not guarantee a meaningful relationship 24 between the defendant and counsel); United States v. Cronic, 466 U.S. 648, 657 (1984) 25 (emphasizing that the appropriate inquiry is on the adversarial process, not on the 26 defendant’s relationship with his lawyer). Furthermore, Petitioner has not shown that a 27 total lack of communication or a complete breakdown of the attorney/client relationship 28 occurred. See Schell v. Witek, 218 F.3d 1017, 1026–27 (9th Cir. 2000) (en banc) - 19 - 1 (recognizing that “a total lack of communication” may result in the “constructive denial 2 of assistance of counsel” in violation of a petitioner’s Sixth Amendment rights); see also 3 Crandell, 25 F.3d at 754–55. 4 b. Investigation of Guilt Phase Issues 5 Petitioner next argues that his trial counsel were deficient for failing to commence 6 interviews of witnesses until nine months into their representation of Petitioner. 7 (Doc. 124 at 29–30). However, Petitioner fails to cite any authority supporting that the 8 delay caused trial counsel’s performance to fall below the “objective standard of 9 reasonableness . . . under prevailing professional norms.” Strickland, 466 U.S. at 688. 10 Further, despite any initial delay in interviewing, trial counsel interviewed over 50 11 witnesses during their representation of Petitioner. (Doc. 125 at 24). Thus, Petitioner has 12 failed to carry his burden. See Harrington v. Richter, 562 U.S. 86, 104 (2011) (“To 13 establish deficient performance, a person challenging a conviction must show that 14 counsel’s representation fell below an objective standard of reasonableness.” (quotation 15 marks omitted) (emphasis added)). 16 c. Review of Discovery 17 Petitioner finally argues that his trial counsel were deficient in their review of 18 discovery. (Doc. 124 at 30–34). Petitioner bases this argument on the number of 19 continuances requested by trial counsel. In particular, trial counsel requested over six 20 continuances in the span of one year. (See id. at 30–32). 21 Petitioner cites to relevant ABA Guidelines that indicate the speed with which 22 attorneys must begin and pursue investigation of their cases. (See id. at 32–33). However, 23 the record does not reflect that trial counsel acted inconsistently with these obligations. In 24 requesting each continuance, trial counsel indicated the volume of discovery involved in 25 this case were the reason for the requests, not that trial counsel had not yet begun 26 discovery. As a result, Petitioner has failed to cite any objective standard indicating that 27 both trial counsel were deficient in requesting multiple continuances. 28 - 20 - 1 3. Prejudice from Trial Counsel’s Performance 2 Even if the Court were to assume that trial counsel were deficient for any or all of 3 the above-discussed reasons, Petitioner has failed to show that he was prejudiced by any 4 such deficiency. See Richter, 562 U.S. at 104 (“With respect to prejudice, a challenger 5 must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, 6 the result of the proceeding would have been different.” (quotation marks omitted)). 7 Petitioner argues that he was prejudiced by trial counsel’s deficiency for two reasons: 8 (1) Petitioner would not have proceeded pro se and, thus, would not have pleaded guilty, 9 (Doc. 124 at 34–36); and (2) trial counsel would have discovered evidence of Petitioner’s 10 mental and neurological health that would have provided a defense against Petitioner’s 11 first-degree murder charges, (id. at 36–37). 12 Petitioner’s first claims that had trial counsel provided adequate assistance, 13 Petitioner would not have proceeded pro se. (Id. at 35). Moreover, Petitioner claims that 14 had he not proceeded pro se, he would have refused the prosecution’s plea agreement. 15 (Id.). 16 With regard to trial counsel’s failure to thoroughly investigate and review guilt 17 phase issues and discovery, Petitioner has not shown that a reasonable probability exists 18 that he would not have proceeded pro se. Petitioner stated multiple times that he 19 understood the significant and complex work trial counsel had completed on his case. 20 (See Doc. 125 at 20–22). Petitioner also provided lack of communication—in particular, 21 personal visits—from trial counsel as the only reason for wanting to proceed pro se. (See, 22 e.g., id. at 20 (“I haven’t been happy with the way I have been represented because, you 23 know, [trial counsel] haven’t been coming down there, and they haven’t been, you know, 24 keeping me advised of everything that’s going on. So I just assume I can do this 25 myself.”)). Thus, even accepting Petitioner’s argument of insufficient investigation, if 26 trial counsel had sufficiently investigated and reviewed guilty phase issues and discovery, 27 Petitioner would still have been upset by the lack of visitation from trial counsel and 28 proceeded pro se. - 21 - 1 With regard to trial counsel’s failure to communicate competently with Petitioner, 2 Petitioner has not shown that a reasonable probability exists that he would not have 3 pleaded guilty. After Petitioner proceeded pro se, the prosecution offered Petitioner a 4 plea in which Petitioner “would agree to plead guilty to four counts of first-degree 5 murder without any agreement as to sentence in return for the prosecution’s dismissal of 6 the non-murder counts.” (Doc. 124 at 35). Petitioner then met twice with Mr. Vaughn, in 7 his role as advisory counsel, to review the plea agreement. (Id. at 34–35). After Petitioner 8 changed his plea, he wrote a letter to Mr. Vaughn expressing anger for Mr. Vaughn’s 9 participation in media interviews. (See Doc. 124-1 at 121, 125). During these interviews, 10 Mr. Vaughn apparently expressed disagreement with Petitioner’s decision regarding the 11 plea agreement. (See id.). Petitioner relies on this letter to argue that a reasonable 12 probability existed that, had Mr. Vaughn still represented Petitioner, he would not have 13 pleaded guilty. (Doc. 124 at 35–36). However, this letter never expresses regret for 14 entering into the plea agreement. Instead, the letter expresses anger for Mr. Vaughn 15 providing his opinions to the media rather than to Petitioner. Petitioner’s letter concludes: 16 19 The reason that I am confronting you with this is because I am considering withdrawing my waiver of [counsel] so that my sentencing may be conducted properly, but there is no way that I will do this unless I can be assured that problems like those mentioned throughout this letter will not continue. I will not put up with problems like this any longer, we need to resolve this matter. 20 (Doc. 124-1 at 127). Thus, Petitioner explicitly indicated that the purpose for writing the 21 letter was to determine whether to withdraw his waiver of counsel for the sentencing 22 phase of the case—not question his decision to enter into the plea agreement. Further, 23 Petitioner independently justified his reason for entering into the plea agreement to a 24 reporter, noting that “if he had a jury hearing all of the things that had happened at the 25 [victims’] house, that it would inflame them, and it would be harder on him than if he just 26 went before a judge.” Djerf, 959 P.2d at 1285 n.6. Thus, the Court finds no indication that 27 Petitioner would have rejected the plea agreement had Mr. Vaughn continued to represent 28 him. 17 18 - 22 - 1 Petitioner next claims that, had trial counsel properly investigated the guilt phase 2 issues of Petitioner’s case, trial counsel would have discovered evidence of Petitioner’s 3 “mental and neurological health that could have been used to develop a defense to the 4 first-degree murder charges against” Petitioner. (Doc. 124 at 36). The Ninth Circuit has 5 “repeatedly held that defense counsel in a murder trial was ineffective where there was 6 some evidence of the defendant’s mental illness in the record but counsel failed to 7 investigate it as a basis for a mental defense to first degree murder.” Daniels v. Woodford, 8 428 F.3d 1181, 1206–07 (9th Cir. 2005) (citations omitted). For example, in Jennings v. 9 Woodford, the Ninth Circuit held that the petitioner was prejudiced by trial counsel’s 10 failure to investigate the petitioner’s mental health and drug abuse problems. 11 290 F.3d 1006, 1014–19 (9th Cir. 2002). The Jennings court noted that considerable drug 12 and 13 methamphetamine use, schizophrenia diagnosis, statements to the police, history of self- 14 inflicted injuries, and involuntary commitment to a psychiatric evaluation, among other 15 evidence. Id. at 1016. Because trial counsel ignored this evidence, the court found 16 counsel’s deficient performance to be prejudicial. Id. at 1019; see also, e.g., Seidel v. 17 Merkle, 146 F.3d 750, 755 (9th Cir. 1998) (holding that trial counsel was prejudicially 18 ineffective for failing to conduct a reasonable investigation of guilt phase mental defenses 19 despite “abundant signs in the record that [the petitioner] suffered from mental illness”); 20 Bloom v. Calderon, 132 F.3d 1267, 1272 (9th Cir. 1997) (holding that trial counsel was 21 prejudicially ineffective for failing to conduct a reasonable investigation of guilt phase 22 mental defenses despite considerable evidence in the record, including family history of 23 mental illness, child abuse, spousal abuse, exposure to prescription drugs with psychiatric 24 side effects, and significant findings from a psychologist and psychiatrists). mental health evidence was in the record, including the petitioner’s 25 Here, Petitioner makes the conclusory statement that “evidence exists that 26 Petitioner suffered from significant mental illness at the time of the offenses.” 27 (Doc. 124 at 36). However, Petitioner fails to cite any such evidence from the record. 28 Rather, Petitioner relies solely on a 2004 neuropsychological evaluation that concludes - 23 - 1 that 2 (Doc. 124-1 at 131 (emphasis added)). Even if the Court were to assume that Petitioner 3 would have retained trial counsel had they conducted additional investigations into 4 Petitioner’s mental health, 8 and even if the Court were then to assume that Petitioner 5 would not have still pleaded guilty due to his fears of inflaming a jury, this post-hoc 6 neuropsychological evaluation does not show prejudicial ineffectiveness. Petitioner’s 7 citation to a mental health report conducted nine years after Petitioner pleaded guilty is 8 insufficient to show prejudice. See Harris v. Vasquez, 949 F.2d 1497, 1515–16 9 (9th Cir. 1990) (“Because psychiatrists disagree widely and frequently on what Petitioner “may qualify for a DSM-IV diagnosis of schizophrenia.” 10 constitutes 11 evaluations . . . does not constitute a colorable showing of actual innocence.” (quotation 12 marks and citations omitted)); see also Boyde v. Brown, 404 F.3d 1159, 1168–69 13 (9th Cir. 2005). 14 4. mental illness, . . . the mere presentation of new psychological Conclusion 15 The Court finds that Petitioner has failed to show PCR counsel was deficient. 16 Petitioner has also failed to show PCR counsel was prejudicially ineffective because 17 Claim 3, which alleges that Petitioner’s trial counsel were prejudicially ineffective, is 18 meritless. Thus, the default of Claim 3 is not excused under Martinez, and the claim 19 remains defaulted and barred from federal review. 20 D. Evidentiary Development 21 Petitioner seeks evidentiary development in the form of discovery, expansion of 22 the record, and an evidentiary hearing. (Doc. 124 at 40–47). Respondent argues that the 23 Antiterrorism and Effective Death Penalty Act (the “AEDPA”) prohibits the evidentiary 24 development sought by Petitioner. (Doc. 125 at 26). However, the restrictions of 25 28 U.S.C. §§ 2254(d)(1), (e)(2) “do not bar a hearing before the district court to allow a 26 petitioner to show ‘cause’ under Martinez.” Dickens, 740 F.3d at 1321. Accordingly, 27 8 28 This assumption is even a stretch because, as the Court previously noted, Petitioner’s only stated reason for proceeding pro se was the lack of communication— unrelated to the work performed on the case—by trial counsel. - 24 - a petitioner, claiming that PCR counsel’s ineffective assistance constituted “cause,” may present evidence to demonstrate this point. The petitioner is also entitled to present evidence to demonstrate that there is “prejudice,” that is that petitioner’s claim is “substantial” under Martinez. Therefore, a district court may take evidence to the extent necessary to determine whether the petitioner’s claim of ineffective assistance of trial counsel is substantial under Martinez. 1 2 3 4 5 6 Id. 1. 7 Discovery 8 Petitioner requests this Court to allow discovery to depose Alan Simpson, one of 9 Petitioner’s trial counsel. (Doc. 124 at 46). 9 Petitioner also “renews his request for leave 10 to issue a subpoena duces tecum to the Director of the Certification and Licensing 11 Division of the Supreme Court of the State of Arizona to obtain the two sealed 12 psychological reports submitted to the State Bar” in reference to Ms. McAlister. (Id.). 13 A habeas petitioner is not entitled to discovery “as a matter of ordinary course.” 14 Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, Martinez contemplates discovery 15 procedures. See Detrich, 740 F.3d at 1246–47 (recognizing that “it is often necessary to 16 authorize discovery” in the Martinez context). Rule 6 of the Rules Governing Section 17 2254 Cases provides that: A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery. . . . A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents. 18 19 20 21 22 R. 6(a), (b), Rules Governing Sec. 2254 Cases in the U.S. Dist. Cts. (2010). 23 “[A] district court abuse[s] its discretion in not ordering Rule 6(a) discovery when 24 discovery [i]s ‘essential’ for the habeas petitioner to ‘develop fully’ his underlying 25 claim.” Dung The Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005) (quoting Jones v. 26 Wood, 114 F.3d 1002, 1009 (9th Cir. 1997)). However, courts should not allow a 27 28 9 Petitioner cannot depose PCR counsel or other trial counsel as they are both deceased. - 25 - 1 petitioner to “use federal discovery for fishing expeditions to investigate mere 2 speculation.” Calderon v. U.S. Dist. Ct. for the N. Dist. of Cal. (Nicolaus), 3 98 F.3d 1102, 1106 (9th Cir. 1996); see also Rich v. Calderon, 187 F.3d 1064, 1067 4 (9th Cir. 1999) (recognizing that habeas corpus “was never meant to be a fishing 5 expedition for habeas petitioners to ‘explore their case in search of its existence.’” 6 (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). 7 Whether a petitioner has established “good cause” for discovery under Rule 6(a) 8 requires a court to determine the essential elements of the petitioner’s substantive claim 9 and evaluate whether “specific allegations before the court show reason to believe that 10 the petitioner may, if the facts are fully developed, be able to demonstrate that he 11 is . . . entitled to relief.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 12 394 U.S. 286, 299 (1969)). 13 Here, Petitioner fails to show good cause for the requested discovery. Petitioner’s 14 request to depose Mr. Simpson lacks the specificity required by Rule 6. Notably, 15 Petitioner does not allege specific, relevant facts that might be found in the requested 16 deposition. Thus, the discovery request constitutes the type of “fishing expedition” Rule 6 17 does not sanction. See Kemp v. Ryan, 638 F.3d 1245, 1260 (9th Cir. 2011) (“[T]he desire 18 to engage in [an improper fishing] expedition cannot supply ‘good cause’ sufficient to 19 justify discovery.”); see also Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007) (denying a 20 discovery request because the petitioner “did not comply with the specific requirements 21 of Rule (6)(b); his request for discovery is generalized and does not indicate exactly what 22 information he seeks to obtain”). Petitioner’s generalized statements regarding the 23 potential existence of discoverable material does not constitute “good cause.” 24 Petitioner’s request for access to sealed psychological reports concerning Ms. 25 McAlister fails for the same reasons the Court noted in its earlier Order. (See Doc. 123). 26 Even if the Court assumes that PCR counsel’s mental state during representation is 27 relevant to an objective assessment of her performance, Petitioner has not stated that 28 these sealed reports would likely contain any relevant mental health information different - 26 - 1 from what the Court has already considered in this Order. See supra Section II(C)(1)(b). 2 Thus, Petitioner has again failed to show “good cause” sufficient to justify his requested 3 discovery. 4 2. Evidentiary Hearing and Record Expansion 5 Petitioner also states that he is “entitled” to an evidentiary hearing to develop 6 Claim 3 further. (Doc. 124 at 37, 46). Petitioner also requests that the Court allow 7 expansion of the record to include exhibits Petitioner submitted alongside his brief. 8 (Doc. 124-1). 9 There are situations where an evidentiary hearing under Martinez is appropriate to 10 determine if there is a basis to excuse a procedural default. Detrich, 740 F.3d at 1247. 11 Where, however, documentary evidence provides a sufficient basis to decide a petition, a 12 district court is within its discretion to deny a full hearing. Runningeagle, 825 F.3d at 990 13 (citing Phillips v. Ornoski, 673 F.3d 1168, 1179 (9th Cir. 2012)). 14 Having reviewed the entire record, including the evidence presented by Petitioner 15 in his supplemental Martinez brief, the Court concludes that an evidentiary hearing is not 16 warranted. R. 8(a), Rules Governing Sec. 2254 Cases in the U.S. Dist. Cts. There are no 17 contested facts concerning Petitioner’s counsel, and Petitioner has failed to indicate what 18 evidence he seeks to develop. See Duncan v. Ryan, No. CV-11-08067-PCT-JAT, 19 2016 WL 316882, at *20 (D. Ariz. Jan. 27, 2016) (“As this Court has previously held, an 20 evidentiary hearing cannot be used as a fishing expedition to determine if any witnesses 21 are in existence who may have relevant testimony.” (citing United States v. Fuentes, 22 No. CV 08-348-PHX-JAT, 2009 WL 4730733, at *5 (D. Ariz. Dec. 7, 2009), aff’d, 23 457 F. App’x 687 (9th Cir. 2011))). Further, the Court has found Petitioner’s claim is not 24 even colorable on the facts alleged. See Sexton, 679 F.3d at 1161 (finding the record 25 “sufficiently complete” with respect to underlying ineffective assistance of trial counsel 26 claim); cf. Dickens, 740 F.3d at 1321 (explaining that “a district court may take evidence 27 to the extent necessary” (emphasis added)). Thus, the Court denies Petitioner’s request to 28 hold an evidentiary hearing. However, the Court will expand the record to include the - 27 - 1 exhibits attached to Petitioner’s supplemental brief, as both parties have relied on the 2 information contained therein. 3 III. CLAIM 2 4 In Claim 2, Petitioner alleges that his guilty pleas were not knowing, intelligent, 5 and voluntary because the trial judge failed to inform him that, by pleading guilty, he was 6 forfeiting his right to proceed to trial represented by competent counsel. (See 7 Doc. 124 at 37). Petitioner’s appellate counsel raised this claim on direct appeal. (See 8 Doc. 124-1 at 4). 9 A. Legal Standard 10 Petitioner’s habeas claims are governed by the applicable provisions of the 11 AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a 12 “substantially higher threshold for habeas relief” with the “acknowledged purpose of 13 ‘reduc[ing] delays in the execution of state and federal criminal sentences.’” Schriro v. 14 Landrigan, 550 U.S. 465, 475 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206 15 (2003)). The AEDPA’s “‘highly deferential standard for evaluating state-court 16 rulings’ . . . demands that state-court decisions be given the benefit of the doubt.” 17 Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh, 521 U.S. 18 at 333 n.7). 19 Under the AEDPA, a petitioner is not entitled to habeas relief on any claim 20 “adjudicated on the merits” by the state court unless that adjudication was either 21 (1) “contrary to” clearly established federal law as determined by the Supreme Court, 22 (2) “‘involved an unreasonable application of’ such law,” or (3) “‘was based on an 23 unreasonable determination of the facts’ in light of the record before the state court.” 24 Richter, 562 U.S. at 100 (quoting 28 U.S.C. § 2254(d)). “State-court decisions are 25 measured against [the Supreme Court’s] precedents as of ‘the time the state court renders 26 its decision.’” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (quoting Lockyer v. 27 Andrade, 538 U.S. 63, 71–72 (2003)). Therefore, to assess a claim under subsection 28 (d)(1), the Court must first identify the “clearly established Federal law,” if any, that - 28 - 1 governs the sufficiency of the claims on habeas review. Habeas relief cannot be granted if 2 the Supreme Court has not “broken sufficient legal ground” on a constitutional principle 3 advanced by a petitioner, even if lower federal courts have decided the issue. Williams v. 4 Taylor, 529 U.S. 362, 381 (2000). Nevertheless, while only Supreme Court authority is 5 binding, circuit court precedent may be “persuasive” in determining what law is clearly 6 established and whether a state court applied that law unreasonably. Clark v. Murphy, 7 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Andrade, 8 538 U.S. 63. 9 The Supreme Court has provided guidance in applying each prong of 10 Section 2254(d)(1). The Court has explained that a state court decision is “contrary to” 11 the Supreme Court’s clearly established precedents if the decision applies a rule that 12 contradicts the governing law set forth in those precedents, thereby reaching a conclusion 13 opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set 14 of facts that is materially indistinguishable from a decision of the Supreme Court but 15 reaches a different result. Williams, 529 U.S. at 405–06; see also Early v. Packer, 16 537 U.S. 3, 8 (2002) (per curiam). In characterizing the claims subject to analysis under 17 the “contrary to” prong, the Court has observed that “a run-of-the-mill state-court 18 decision applying the correct legal rule to the facts of the prisoner’s case would not fit 19 comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Williams, 529 U.S. at 406; see 20 also Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004). 21 Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas 22 court may grant relief where a state court “identifies the correct governing legal rule from 23 [the Supreme] Court’s cases but unreasonably applies it to the facts of the 24 particular . . . case” or “unreasonably extends a legal principle from [Supreme Court] 25 precedent to a new context where it should not apply or unreasonably refuses to extend 26 that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a 27 federal court to find a state court’s application of Supreme Court precedent 28 “unreasonable,” the petitioner must show that the state court decision was not merely - 29 - 1 incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Landrigan, 550 U.S. 2 at 473; Visciotti, 537 U.S. at 25. 3 Under the standard set forth in § 2254(d)(2), habeas relief is available only if the 4 state court decision was based upon an unreasonable determination of the facts. Miller-El 5 v. Dretke, 545 U.S. 231, 240 (2005) (“Miller-El II”). A state court decision “based on a 6 factual determination will not be overturned on factual grounds unless objectively 7 unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El I, 8 537 U.S. at 340; see also Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In 9 considering a challenge under § 2254(d)(2), state court factual determinations are 10 presumed to be correct, and a petitioner bears the “burden of rebutting this presumption 11 by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Landrigan, 550 U.S. 12 at 473–74; Miller-El II, 545 U.S. at 240. 13 B. 14 Petitioner contends that he did not make a knowing, intelligent, and voluntarily 15 waiver of his right to counsel because the trial court failed to advise Petitioner that he had 16 a right to seek counsel other than Vaughn and Simpson. (Doc. 124 at 37–40). Respondent 17 rejoins that the Arizona Supreme Court’s decision “was neither contrary to, nor involved 18 an unreasonable application of, clearly established United States Supreme Court case 19 law, nor was it an unreasonable determination of the facts in light of the record before the 20 state court.” (Doc. 125 at 31). Analysis 21 A defendant has a constitutional right to represent himself. Faretta v. California, 22 422 U.S. 806, 836 (1975). However, before a defendant may waive counsel, the court 23 must ensure that his waiver is made knowingly, intelligently, and voluntarily. See 24 Edwards v. Arizona, 451 U.S. 477, 482 (1981). 25 The Arizona Supreme Court rejected Petitioner’s claim that his guilty pleas were 26 not knowing, intelligent, and voluntary. Djerf, 959 P.2d at 1285. The Court reviewed the 27 record and determined that “the trial judge fully satisfied each requirement” required by 28 federal law, including that Petitioner understood: “(1) the nature of the charges, (2) the - 30 - 1 nature and range of possible sentences, including any special conditions, (3) the 2 constitutional rights waived by pleading guilty, (4) the right to plead not guilty, and (5) 3 that the right to appeal is also waived if the defendant is not sentenced to death.” Id. 4 (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). 5 Petitioner contends that the state court failed to follow clearly established federal 6 law because it did not specifically consider Petitioner’s difficulties with his trial counsel. 7 (Doc. 127 at 9–10). Petitioner cites the U.S. Supreme Court cases Johnson v. Zerbst, 8 304 U.S. 458 (1938) and Iowa v. Tovar, 541 U.S. 77 (2004) as establishing the federal 9 law he relies upon. (Doc. 124 at 39). In Zerbst, the Court recognized that “[t]he 10 determination of whether there has been an intelligent waiver of the right to counsel must 11 depend, in each case, upon the particular facts and circumstances surrounding that case, 12 including the background, experience, and conduct of the accused.” 304 U.S. at 464. In 13 Tovar, the Court also elaborated that “[t]he information a defendant must possess in order 14 to make an intelligent election depends on a range of case-specific factors, including his 15 education or sophistication, the complex or easily grasped nature of the charge, and the 16 stage of the proceeding.” 541 U.S. at 88. 17 Petitioner does not attack the state court’s overall analysis of the record but, 18 instead, argues that the state court failed to conduct a contextual analysis because it did 19 not explicitly consider Petitioner’s history with trial counsel. (Doc. 124 at 39). This 20 argument runs counter to the cases Petitioner cites. See, e.g., Arrendondo v. Neven, 21 763 F.3d 1122, 1130 (9th Cir. 2014) (“No clearly established Supreme Court case law 22 requires trial courts to apprise defendants in any particular form of the risks of proceeding 23 to trial pro se.”). It is clear that the state court performed a contextualized review of the 24 record and, thus, did not rely on an unreasonable application of federal law. 25 Petitioner also argues that the state court reached a decision that “was based on an 26 unreasonable determination of the facts in light of the evidence presented in the state 27 court proceedings.” (Doc. 124 at 38–39). “A federal court may not second-guess a state 28 court’s fact-finding process unless, after review of the state-court record, it determines - 31 - 1 that the state court was not merely wrong, but actually unreasonable.” Taylor, 366 F.3d 2 at 999. Here, the Court does not find the state court’s decision unreasonable based on the 3 state-court record. First, Petitioner exaggerates the state of his relationship with advisory 4 counsel when he pleaded guilty. Petitioner’s characterization that communications had 5 “irreparably broken down,” (Doc. 124 at 40), ignores that Petitioner subsequently 6 withdrew his waiver of counsel and accepted representation for his sentencing 7 proceedings. Second, the Court’s above analysis undermines Petitioner’s assertion that 8 his trial counsel were “grossly deficient.” (Id. at 39). Thus, Petitioner has failed to present 9 any evidence to show that the state court’s decision regarding the knowing, intelligent, 10 and voluntary nature of his guilty plea was based on an unreasonable determination of the 11 facts. 12 Even if the Court were to assume that the state court failed to follow clearly 13 established federal law or based its decision on an unreasonable determination of the 14 facts, the trial judge’s underlying error would be harmless. The harmless-error standard 15 on habeas review provides that “relief must be granted” if the error “had a substantial and 16 injurious 17 507 U.S. 619, 637 (1993); see also United States v. Flynn, 316 F. App’x 658 18 (9th Cir. 2009) (applying Brecht in a federal habeas plea colloquy error situation); 19 Guzman v. Lamarque, No. CIV S-04-0700 FCD GGH P, 2009 WL 900729, at *19 20 (E.D. Cal. Mar. 31, 2009) (same). Here, Petitioner stated that he pleaded guilty because 21 “if he had a jury hearing all of the things that had happened at the [victims’] house, that it 22 would inflame them, and it would be harder on him than if he just went before a judge.” 23 Djerf, 959 P.2d at 1285 n.6. Thus, as the Court noted earlier, Petitioner has not shown a 24 reasonable probability that he would have declined to enter a guilty plea had the judge 25 indicated he could request new counsel. 10 effect or influence” on the proceedings. Brecht v. Abrahamson, 26 27 10 28 The Court also notes that Petitioner has failed to cite any case that would require the trial judge to appoint new counsel at Petitioner’s request when communications had not irreparably broken down. - 32 - 1 IV. CERTIFICATE OF APPEALABILITY A judge may issue a certificate of appealability (“COA”) “only if the applicant has 2 3 made 4 28 U.S.C. § 2253(c)(2). The standards for granting a COA are the same for petitions 5 under Sections 2254 and 2255. See United States v. Martin, 226 F.3d 1042, 1046 n.4 6 (9th Cir. 2000). “Where a district court has rejected the constitutional claims on the 7 merits, the showing required to satisfy [Section] 2253(c) is straightforward: The 8 petitioner must demonstrate that reasonable jurists would find the district court's 9 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 10 529 U.S. 473, 483–84 (2000). “When the district court denies a habeas petition on 11 procedural grounds without reaching the prisoner’s underlying constitutional claim, a 12 COA should issue when the prisoner shows, at least, that jurists of reason would find it 13 debatable whether the petition states a valid claim of the denial of a constitutional right 14 and that jurists of reason would find it debatable whether the district court was correct in 15 its procedural ruling.” Id. at 484. a substantial showing of the denial of a constitutional right.” 16 The Court may address either element of the two-pronged COA test to determine 17 the appealability of a district court’s procedural ruling in any order if disposing one 18 element resolves the issue. See id. at 485 (“Each component of the [Section] 2253(c) 19 showing is part of a threshold inquiry, and a court may find that it can dispose of the 20 application in a fair and prompt manner if it proceeds first to resolve the issue whose 21 answer is more apparent from the record and arguments.”). 22 The rule for issuing a COA amounts to but a “modest standard” and the Ninth 23 Circuit has cautioned “‘we must be careful to avoid conflating the standard for gaining 24 permission to appeal with the standard for obtaining a writ of habeas corpus.’” Silva v. 25 Woodford, 279 F.3d 825, 832 (9th Cir. 2002) (quoting Lambright v. Stewart, 26 220 F.3d 1022, 1024, 1025 (9th Cir. 2000)). Finally, “any doubts” about granting a 27 movant’s request for a COA “must be resolved in his favor” and a court should issue a 28 COA unless the claims are “utterly without merit.” Id. at 833 (quotation marks omitted). - 33 - 1 However, “[a] prisoner seeking a COA must prove something more than the absence of 2 frivolity or the existence of mere good faith on his or her part.” Miller-El I, 537 U.S. 3 at 338 (quotation marks omitted). 4 Here, neither party addresses whether the Court should grant or deny a COA on 5 any claim. First, the Court finds that reasonable jurists could not dispute that the state 6 trial court’s order—finding that Petitioner’s appellate counsel raised Claim 2 on appeal— 7 renders Claim 5(2) moot. Next, the Court finds that reasonable jurists could not debate 8 the conclusion that Claim 3 is procedurally barred. Finally, the Court determines that 9 reasonable jurists would not find the Court’s assessment of the constitutional claims to be 10 debatable or wrong. Accordingly, the Court denies a COA as to Claims 2, 3, and 5(2). 11 V. CONCLUSION 12 Based on the foregoing, 13 IT IS ORDERED that Claim 3 is DENIED as procedurally barred. 14 IT IS FURTHER ORDERED that Claim 5(2) is DENIED as moot. 15 IT IS FURTHER ORDERED that Claim 2 is DENIED. 16 IT IS FURTHER ORDERED DENYING a certificate of appealability as to 17 18 Claims 2, 3, and 5(2). Dated this 4th day of April, 2017. 19 20 21 22 23 24 25 26 27 28 - 34 -

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