Pinkoson v. Davenport et al

Filing 13

REPORT AND RECOMMENDATION - IT IS THEREFORE RECOMMENDED that Mr. Pinkooson's 1 Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. Signed by Magistrate Judge Mark E Aspey on 1/23/09. (see order for details)(SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ALVIN LARUE PINKOSON, Petitioner, v. ADW DAVENPORT, ARIZONA ATTORNEY GENERAL, and DORA SCHRIRO, Respondents. _______________________________ ) ) ) ) ) ) ) ) ) ) ) )

CIV 08-01388 PHX ROS (MEA) REPORT AND RECOMMENDATION

TO THE HONORABLE ROSLYN O. SILVER: On July 21, 2008, Petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Docket No. 12) on November 6, 2008. I Procedural History On November 24, 2003, Petitioner was convicted by a jury on two counts of burglary in the third degree. Exh. A. Answer, Petitioner was sentenced to an aggravated, concurrent Id., Exh. B & Exh. C. court noted violations of In aggravating lengthy and parole

term of twelve years imprisonment pursuant to his conviction on each of these two counts. his sentences the trial criminal history and Petitioner's both

prior

probation.

Id., Exh. B & Exh. C.

When imposing the sentences,

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the court stated: ...if it weren't for these two priors, I would put you on intensive probation when you got out of prison because, quite frankly, that's the help I think you would find that you need... but I can't because the State has alleged the two priors, I have found them, and I have to send you to prison under the law on both Counts 1 and 2. Id., Exh. B at 17.1 Petitioner took a direct appeal of his conviction and sentences. Id., Exh. D & Exh. E. Petitioner asserted in his direct appeal that the trial court erred by trying him in absentia and that his sentences violated the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Id., Exh. D & Exh. E. Id., Exh. G. The Arizona The Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a decision issued October 7, 2004. Supreme Court denied review on April 20, 2005. Id., Exh. I.

Petitioner filed a timely action for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id., Exh. J. Petitioner raised six distinct ineffective assistance of counsel claims in this action. Id., Exh. K.

Petitioner also asserted the state failed to prove his prior offenses and that his sentences violated the Blakely doctrine.

The sentencing court cited a presentence report indicating Petitioner had previously been convicted of a total of seven prior felony convictions and several misdemeanors, and that he had a criminal history going back to 1980. Answer, Exh. B. However, as a matter of law, the state alleged and the trial court found that Petitioner was convicted of aggravated assault in 2001 and was convicted of burglary in 1997. Id., Exh. C. -2-

1

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Id., Exh. K.

The state trial court summarily denied relief on Id., Exh. M. Both the Arizona Court of

January 12, 2006. decision.

Appeals and the Arizona Supreme Court denied review of this Id., Exh. O & Exh. R. In his federal habeas petition Petitioner asserts he is entitled to relief because his federal constitutional rights were violated by the in absentia trial. Petitioner also contends that his sentences violate Blakely, i.e., that he was sentenced to an aggravated term of imprisonment based on facts not found by a jury. trial, at sentencing, Petitioner also maintains that he was and during a hearing regarding the denied his right to the effective assistance of counsel at allegation of prior convictions. II Analysis A. Exhaustion Absent particular circumstances, the Court should not entertain the merits of a petition for a writ of habeas corpus before the petitioner's state remedies have been "exhausted." See 28 U.S.C. § 2254(b) & (c) (2006 & Supp. 2008). Although it may deny relief on the merits of an unexhausted claim, the District Court may not grant federal habeas relief on the merits of a claim which has not been exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 2554-55 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule
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upon

the

merits

of

the

constitutional

claim

by

"fairly

presenting" the claim to the state's "highest" court in a procedurally correct manner. See, e.g., Castille v. Peoples, The Ninth 489 U.S. 346, 351, 109 S. Ct. 1056, 1060 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). Circuit Court of Appeals has concluded that, in non-capital cases arising in Arizona, including cases in which a term of life imprisonment is actually imposed, the "highest court" test of the exhaustion requirement is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals, either on direct appeal or in a petition for post-conviction relief. 1999). (D. for See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. See also Crowell v. Knowles, 483 F. Supp. 2d 925, 932 2007) of (providing exhausting a a thorough and well-reasoned conviction or

Ariz.

discussion of what constitutes the "highest court" in Arizona purposes non-capital sentence). Respondents allow that Petitioner properly exhausted most of his federal habeas claims in the state courts. Respondents assert that Petitioner did not properly exhaust his claim that his counsel was ineffective for failing to allege that the state had not properly proven his two prior felony convictions. See Answer at 23. B. Standard of review with regard to properly exhausted claims for relief The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state
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court proceedings unless the state court reached a decision contrary to clearly established federal law, or one involving an unreasonable application of clearly established federal law, or unless the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding. See 28 U.S.C. § 2254(d) (1994 & Supp. 2008); Panetti v. Quarterman, 127 S. Ct. 2842, 2858 (2007); Carey v. Musladin, 549 U.S. 70, 74-75, 127 S. Ct. 649, 653 (2006); Rompilla v. Beard, 545 U.S. 374, 390, 125 S. Ct. 2456, 2467-68 (2005); King v. Schriro, 537 F.3d 1062, 1068 (9th Cir. 2008)2; Cook v. Schriro, 516 F.3d 802, 816 (9th Cir. 2008). United States Supreme Court holdings at the time of the state court's decision are the source of "clearly established federal law" for the purpose of federal habeas review. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000); Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). Unless United States Supreme Court precedent has clearly established a
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For the "contrary to" clause, appellant would have to demonstrate that the state court decision "`arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law,'" or when faced with "materially indistinguishable" facts. The "unreasonable application" clause requires not merely that we disagree with the state court's application,FN12 but beyond that, that the state court decision is objectively unreasonable. Even if we think the state court erred, the state court decision stands if the error was not an unreasonable application of Supreme Court holdings. State court factual determinations stand, even if we would not reach them on the same record, unless there is "clear and convincing evidence" that they are "objectively unreasonable." -5-

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rule of law, the writ will not issue based on a claimed violation of that rule, see Alvarado v. Hill, 252 F.3d 1066, 1069 (9th Cir. 2001), because federal courts are "without the power" to extend the law beyond Supreme Court precedent. Dows v. Wood, 211 F.3d 480, 485 (9th Cir. 2000). See If the United

States Supreme Court has not addressed the issue raised by Petitioner in its holdings, the state court's adjudication of the issue cannot be contrary to, or an unreasonable application of, clearly established federal law. See Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007), cert. denied sub nom., Stenson v. Uttecht, 129 S. Ct. 247 (2008), citing Kane v. Espitia, 546 U.S. 9, 10, 126 S. Ct. 407, 408 (2006). Therefore, if the issue raised by the petitioner "is an open question in the Supreme Court's jurisprudence," the Court may not issue a writ of habeas corpus on the basis that the state court by Cook, unreasonably applied clearly established federal law

rejecting the precise claim presented by the petitioner.

516 F.3d at 818, quoting Carey, 549 U.S. at 76, 127 S. Ct. at 654; Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007), cert. denied, 128 S. Ct. 2961 (2008). When more than one state court has adjudicated a claim, the Court must analyze the last "reasoned" decision to determine if the state's denial of relief on the claim was clearly contrary to federal law. state's denial of a See Barker, 423 F.3d at 1091-92 & n.3. presented in a federal habeas When there is no "reasoned" state court decision explaining the claim petition, the District Court must perform an independent review
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of the record to ascertain whether the state court's decision summarily denying the claim was objectively reasonable. See Medley v. Runnels, 506 F.3d 857, 863 & n.3 (9th Cir. 2007), cert. denied, 128 S. Ct. 1878 (2008); Stenson, 504 F.3d at 890. C. his Sixth Petitioner's claims for relief Amendment and Fourteenth Amendment rights were 1. Petitioner asserts he is entitled to relief because violated by the in absentia trial. Petitioner raised this issue in his direct appeal. The Arizona Court of Appeals denied relief, concluding the trial court did not abused its discretion in finding Petitioner waived his right to be present at trial. See Answer, Exh. G. See id., Exh. D. In July of 2003, Petitioner was released on bond pending resolution of the charges against him. Petitioner's trial was continued until July 29, 2003, after he rejected a plea agreement, and the case was transferred to a different trial judge. time set for trial. Id., Exh. D. Confusion ensued with regard to Petitioner's presence at his counsel's office at the Id., Exh. D. The trial court issued a Id., Exh. D. Several bench warrant for Petitioner and ordered the trial to proceed notwithstanding Petitioner's absence. witnesses testified against Petitioner at his in absentia trial and the defense did not call any witnesses. trial ended in his in absentia conviction. Id., Exh. D. Petitioner was arrested on the bench warrant six days after his Id., Exh. D. The state court's conclusion was not an unreasonable application of clearly established federal law because the right
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to be present is properly deemed waived if the defendant fails to assert this right by appearing at his trial. See United States v. Gagnon, 470 U.S. 522, 528-29, 105 S. Ct. 1482, 1485-86 (1985); United States v. Houtchens, 926 F.2d 824, 826 (9th Cir. 1991); Campbell v. Wood, 18 F.3d 662, 672-73 (9th Cir. 1994); Brewer v. Raines, 670 F.2d 117, 119 (9th Cir. 1982). 2. Petitioner maintains that his sentences violate Blakely, i.e., that he was sentenced to an aggravated term of imprisonment based on facts not found by a jury. In denying Petitioner's Blakely claim, the Arizona Court of Appeals concluded Petitioner's sentences did not run afoul of Blakely because the aggravated sentences were See predicated on prior convictions admitted by Petitioner. Answer, Exh. G at 7-8. The Blakely was Arizona not court's conclusion to, that an Petitioner's unreasonable sentence did not violate his rights pursuant to the holding in clearly contrary nor application of federal law. The fact that Petitioner's sentence was aggravated by prior felony convictions and that he admitted these convictions removes his circumstance from the umbrella of Blakely. Ct. 2531, See Blakely v. Washington, 542 U.S. 296, 301, 124 S. 2536 (2004) ("`Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" (emphasis added), quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 (2000)); Hunter v. Werholtz, 505 F.3d 1080, 1082
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(10th Cir. 2007).

Therefore, Petitioner is not entitled to

federal habeas relief on this claim because the state court's decision was not clearly contrary to federal law. 3. Petitioner also maintains that he was denied his right to the effective assistance of counsel. Respondents allow that Petitioner exhausted most of his ineffective assistance of counsel claims by raising them in his state Rule 32 action. that The he state was court summarily his right denied to the Petitioner's claims denied

effective assistance of counsel. The state court's decision was not clearly contrary to nor an unreasonable application of federal law. To state a claim for ineffective assistance of counsel, a petitioner must show that his attorney's performance was deficient and that the deficiency prejudiced the petitioner's defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 The petitioner must overcome the S. Ct. 2052, 2064 (1984).

strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. To See id. on the merits of a habeas claim of prevail

ineffective assistance of counsel, "it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. incorrect application of federal law." An unreasonable application of federal law is different from an Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357, 360 (2002) (internal quotations
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omitted). hindsight,

"A fair assessment of attorney performance requires to reconstruct the circumstances of counsel's

that every effort be made to eliminate the distorting effects of challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ct. at 2065. Strickland, 466 U.S. at 689, 104 S. Indeed, "strategic choices made after thorough Id., 466 U.S. at 690-91, 104 S.

investigation of law and facts relevant to plausible options are virtually unchallengeable...." Ct. at 2066 (emphasis added). To succeed on an assertion his counsel's performance was deficient because counsel failed to raise a particular argument the petitioner must establish the argument was likely to be successful, thereby establishing that he was prejudiced by his counsel's omission. See Tanner v. McDaniel, 493 F.3d 1135, 1144 (9th Cir.), cert. denied, 128 S. Ct. 722 (2007); Weaver v. Palmateer, 455 F.3d 958, 970 (9th Cir. 2006), cert. denied, 128 S. Ct. 177 (2007). A defendant has no constitutional right to compel counsel to raise particular objections if counsel, as a matter of professional judgment, decides not to raise those objections. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983) (declining to promulgate "a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed"). Petitioner asserts his counsel was unconstitutionally ineffective because his counsel's motion to sever his offenses for trial was not filed on time, i.e., within twenty days of the date set for trial. Petitioner has not established, however,
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that any such error was prejudicial because the motion to sever was denied on the merits. See Answer, Exh. A at 14-19. Accordingly, the state court's decision that the alleged error did not violate Petitioner's Sixth Amendment rights was not clearly contrary to federal law. Petitioner performance was also contends because his his trial counsel counsel's failed to deficient

interview a police officer within twenty days of the trial date. Petitioner maintains that interviewing the officer earlier would have allowed counsel to file a timely pre-trial motion to suppress evidence. Petitioner contends the alleged deficiency was prejudicial because the evidence was "clearly" inadmissible. The state court's decision denying Petitioner's claim that his counsel's performance was deficient and prejudicial in this regard was not clearly contrary to federal law because Petitioner has not established that any alleged failure to file a motion to suppress the evidence was prejudicial to Petitioner. Petitioner further alleges that his trial counsel's performance was deficient because counsel withdrew a request for a "`Dessureault' hearing." concerning the unduly Petitioner asserts this error was nature of the pre-trial prejudicial because the "Dessureault Hearing was very important suggestive identification." 3
3

Petitioner further asserts his trial counsel

See Arizona v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969). Pursuant to state law, a trial court conducts a "Dessureault" hearing to determine if the proposed identification of the defendant as the perpetrator of the alleged crimes was unduly suggestive, i.e., if it was likely that the procedure had caused a witness to misidentify the defendant. At the hearing, the trial court -11-

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"convinced the trial judge that exculpatory evidence (green towel) did not exist and as a result my motion for Willits Instruction concerning that the State lost or destroyed evidence was denied."4 Respondents argue that, because the facts of his case did "not warrant a Dessureault hearing, it was not unreasonable for counsel to withdraw the motion." Respondents also contend that Petitioner has not established that any such error was prejudicial, "because he has not demonstrated a reasonable likelihood that the motion would have succeeded if counsel had not withdrawn it." Respondents further maintain that Petitioner was not entitled to a Willits instruction and, accordingly, that any deficiency which resulted in the "failure" to give the instruction was not prejudicial. Respondents note Petitioner provides no evidence that the police ever had custody of a green towel, or that the towel could have exonerated him. Counsel's decisions regarding jury instructions are fairly construed as a strategic decision. F.3d 598, 607 (6th Cir. 2002). See Scott v. Elo, 302 "A fair assessment of attorney

performance requires that every effort be made to eliminate the
is required to examine the totality of the circumstances surrounding the proposed identification of the defendant, unless the prosecution proved by clear and convincing evidence that the procedure regarding the identification is not unduly suggestive. See Arizona v. Smith, 146 Ariz. 491, 496, 707 P.2d 289, 294 (1985). See Arizona v. Willits, 96 Ariz. 184, 190-91, 393 P.2d 274, 277-79 (1964). To be entitled to a jury instruction pursuant to the holding in Willits, a defendant must prove both that the state failed to preserve exculpatory, material, accessible evidence, and resulting prejudice. See Arizona v. Fulminante, 193 Ariz. 485, 503, 975 P.2d 75, 93 (1999). -124

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distorting the conduct

effects from

of

hindsight,

to

reconstruct at the

the

circumstances of counsel's challenged conduct, and to evaluate counsel's perspective time.'" Indeed, virtually Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. facts relevant to plausible options are

"strategic choices made after thorough investigation of law and unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." clearly Id., 466 U.S. at 690-91, 104 S. Ct. at 2066. decision was not contrary to law, or one involving an federal Therefore, the state court's established

unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, and Petitioner is not entitled to federal habeas relief on his claim that he was deprived of the effective assistance of counsel. Petitioner adequately argue further in alleges limine his counsel "failed the use to of interview any witnesses for defendant, and counsel failed to motions concerning spontaneous statements made by me prior to Miranda, that the State avowed they would not use." nothing but conclusory However, Petitioner offers regarding his counsel's allegations

alleged failure to interview "any witnesses" or evidence of how any failure to interview a specific witness would have resulted in a different outcome at trial. Vague or conclusory claims do not establish evidence sufficient to conclude the state court's
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decision was clearly contrary to federal law. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). The evidence presented against Petitioner at his trial from eyewitnesses was overwhelming. See Answer, Exh. D. The undersigned notes the Ninth Circuit Court of Appeals has held the likelihood of prejudice to the defendant from counsel's failure to adequately investigate is more likely when the prosecutions' case against the defendant is weak. the cases discussed infra so holding). 4. Petitioner alleges he was denied his right to the effective assistance of counsel during a hearing regarding the allegation of prior convictions. Petitioner asserts he was denied his right to effective assistance of counsel "during trial on priors. The State was not able to prove two felony priors. The State's expert witness, Carl Speckels, was not able to compare my thumb print to exhibits "6" and "7", which refer to a Class "3" Felony the State was alleging I committed on January 22, 1995." Respondents contend Petitioner did not properly exhaust this claim by fairly presenting both the factual and legal predicate for the habeas claim in the state courts. priors has not in his PCR petition, for, nor
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See, e.g.,

Avila v. Galaza, 297 F.3d 911, 924 (9th Cir. 2002) (collecting

"Although it as an his

Petitioner claimed that the State had failed to prove his two he did not raise arising ineffective assistance of counsel claim." shown cause prejudice Because Petitioner from

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procedural default of the claim, Respondents argue, federal habeas relief on the claim is precluded. The undersigned concludes Petitioner did not properly exhaust this claim in the state courts by fairly presenting it as a Sixth Amendment claim to the state courts. Schriro, 426 F.3d 1044, 1056 (9th Cir. See Moorman v. (holding a 2005)

petitioner could not argue ineffective assistance of counsel claims in a habeas action if they had not raised the specific factual basis for the claim in the state courts); Carriger, 971 F.2d at 333-34; Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004). Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and preclusion, prevent Petitioner from now exhausting this claim in the state courts, the claim has been procedurally defaulted. claim. Petitioner has failed to show cause for, or prejudice arising from, his procedural default of the Accordingly, habeas relief on the merits of this claim III Conclusion properly exhausted all but one of his The state courts' is precluded. Petitioner

federal habeas claims in the state courts.

decisions that Petitioner was not entitled to relief from his convictions or sentences on the bases asserted by Petitioner were not clearly contrary to nor an unreasonable application of federal law. Additionally, with regard to Petitioner's claim regarding the ineffective assistance of counsel with regard to the finding of prior felony convictions, Petitioner failed to exhaust this claim in the state courts.
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Petitioner has not

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shown cause for nor prejudice arising from his procedural default of the claim and, accordingly, relief on the merits of the claim is precluded. IT prejudice. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. the objections. Thereafter, the parties have ten (10) days within which to file a response to Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. 1121 (9th objections to See United States v. Reyna-Tapia, 328 F.3d 1114, 2003) any (en banc). or legal Failure to timely of file the factual determinations Cir. IS THEREFORE RECOMMENDED that Mr. Pinkoson's Petition for Writ of Habeas Corpus be denied and dismissed with

Magistrate Judge will constitute a waiver of a party's right to
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appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge. DATED this 23rd day of January, 2009.

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