Kiehle v. Ryan et al

Filing 27

ORDER Petitioner's Amended Petition for the Writ of Habeas Corpus (Doc. 7 ) is denied. Petitioner's Motion for Cause Respondents to Serve Answer Pleading on Petitioner (Doc. 21 ) is dismissed as moot. The Report and Recommendation (Doc. [1 9]) is accepted in part and rejected in part. Petitioner is issued a Certificate of Appealability for the limited issue of whether the supplemental briefing denied him his Sixth Amendment rights because it presented a special circumstance where "the likelihood that any lawyer, even a fully competent one, could provide assistance is so small that a presumption of prejudice is appropriate." Cronic, 466 U.S. at 659660. Signed by Judge G Murray Snow on 5/30/2012. (KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

David Wayne Kiehle,
Plaintiff,

10
11

vs.

12
Charles L. Ryan, et al.,
13
Defendants.
14

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

No. CV-11-352-PHX-GMS
ORDER

15
16

Pending before this Court is a Petition for Writ of Habeas Corpus filed by Petitioner

17

David Wayne Kiehle. (Doc. 1). Magistrate Judge Burns has issued a Report and

18

Recommendation (“R & R”) in which she recommended that the Court deny the petition with

19

prejudice. (Doc. 19). Petitioner has objected to the R & R and has filed supplemental

20

objections as well. (Docs. 24, 26). Because objections have been filed, the Court will review

21

the petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)

22

(en banc). In addition, Petitioner has filed a “Motion to Cause Respondents to Serve Answer

23

Pleading on Petitioner.” (Doc. 21). For the following reasons, the Court accepts in part and

24

denies in part the R & R, denies the petition, and denies Petitioner’s motion as moot. The

25

Court does grant Petitioner a Certificate of Appealability on one issue, as discussed below.

26

BACKGROUND

27

The facts of the investigation are ably put forth in the R & R and are only briefly

28

summarized here. On July 6, 1998, Petitioner called 911 at 4:45 a.m. to report that he had

1

found his wife Natalie shot in the head in their bedroom. Paramedics arrived and pronounced

2

Natalie dead. Petitioner stated that he had been watching movies with his daughter, B., in the

3

living room when B. had fallen asleep. Petitioner then claimed to have gone into to the

4

bedroom, had sex with his wife, and returned to the living room to get a glass of water. He

5

claimed that while he was going to the living room to get the water he heard a gunshot, and

6

when he returned to the bedroom he found Natalie dead.

7

Over the course of the investigation, the Chandler police found ammunition matching

8

the type with which the gun had been loaded, and which Petitioner had denied possessing,

9

in his closet. They reconstructed the shooting three times and concluded that the wound was

10

not self-inflicted. They learned that Natalie had filed for divorce and that the lawyer who had

11

served the divorce papers on Petitioner had noted Petitioner’s hostility and spoken to Natalie

12

about whether she was in danger. The autopsy revealed bruising that suggested that Natalie

13

had not died immediately but had been held down for several minutes after being shot while

14

she choked on her own blood.

15

On May 2, 2000, Petitioner was found guilty of premeditated first degree murder.

16

(Doc. 15-1, Ex. B). After he was granted postconviction relief by the Arizona Court of

17

Appeals, he was given a new trial, where he was found guilty of second degree murder, a

18

lesser included offense of the original charge, and sentenced to 22 years in prison. (Doc. 18-

19

2, Ex. EE at 10, ¶ 27; Doc. 15-1, Exs. F, G).

20

On July 10, 2006, Plaintiff filed a direct appeal to the Arizona Court of Appeals,

21

raising six grounds for relief not relevant to the current petition. (Doc. 17-9, Ex. BB). The

22

appeal was denied, and Petitioner did not seek review in the Arizona Supreme Court. (Doc.

23

18-2, Ex. EE). On May 1, 2008, Petitioner, acting through counsel, filed a petition for

24

postconviction relief pursuant to Arizona Rule of Criminal Procedure 32.1 in Maricopa

25

County Superior Court. (Doc. 18-4, Ex. MM). There, Petitioner raised two grounds for relief,

26

namely that 1) Petitioner was denied effective assistance of counsel at the supplemental

27

briefing stage of his trial, and 2) the sentencing court had violated Arizona law when it issued

28

a correcting minute entry reducing Petitioner’s credited pre-sentence incarceration from
-2-

1

2,791 days to 2,376 days. (Doc. 18-4, Ex. MM). The trial court denied the petition on the

2

merits. (Doc. 18-6, Ex. PP). Both the Arizona Court of Appeals and the Arizona Supreme

3

Court denied review. (Doc. 18-6, Ex. SS; Doc. 18-7, Ex. UU).

4

Petitioner filed his pro se federal habeas corpus petition on February 23, 2011. (Doc.

5

7). In it, he alleges the same two grounds for relief that he pursued in his Rule 32

6

proceedings, namely 1) Petitioner was denied effective assistance of counsel at the

7

supplemental briefing stage of his trial, and 2) the trial court erred when it amended

8

Petitioner’s pre-sentence incarceration credit.

9
10

DISCUSSION
I.

Legal Standard

11

The writ of habeas corpus affords relief to persons in custody in violation of the

12

Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006). Habeas

13

review is not available “to reexamine state-court determinations on state-law questions.”

14

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The writ may be granted by “the Supreme

15

Court, any justice thereof, the district courts and any circuit judge within their respective

16

jurisdictions.” 28 U.S.C. § 2241(a). Review of Petitions for Habeas Corpus is governed by

17

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244

18

et seq. (2006).

19

A.

20

Under AEDPA, petitions for habeas corpus are governed by a one-year statute of

21

limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (AEDPA “establishes a

22

1-year statute of limitations for filing a federal habeas corpus petition”) (citing 28 U.S.C. §

23

2244(d)(1)). The limitation period begins to run when the state conviction becomes

24

final—either “upon ‘the conclusion of direct review or the expiration of the time for seeking

25

such review.’” White v. Klitzkie, 281 F.3d 920, 923 (9th Cir. 2002) (quoting 28 U.S.C. §

26

2244(d)(1)(A)).

27

B.

28

Habeas relief is not available to petitioners who do not properly exhaust their state

Statute of Limitations under AEDPA

Exhaustion of State Procedures

-3-

1

court procedural remedies prior to filing their federal petitions. 28 U.S.C. § 2254(b)(1). To

2

satisfy the exhaustion requirement, a petitioner must give state courts the opportunity to pass

3

upon and correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513

4

U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)); see Coleman v.

5

Thompson, 501 U.S. 722, 731 (1991) (holding that “a state prisoner’s federal habeas petition

6

should be dismissed if the prisoner has not exhausted available state remedies as to any of

7

his federal claims”) (citations omitted).

8

To provide the state with the necessary opportunity to review the claim, a petitioner

9

must fairly present the claim in each appropriate state court. A claim is not fairly presented

10

unless a petitioner “explicitly indicated” that “the claim was a federal one” in the state court

11

litigation. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904

12

(9th Cir. 2001) (emphasis in original). A petitioner explicitly indicates that a claim is federal

13

by including “reference to a specific federal constitutional guarantee, as well as a statement

14

of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162–63

15

(1996). A petitioner does not fairly present a state court with a federal claim merely by

16

including “general appeals to broad constitutional principles, such as due process, equal

17

protection, and the right to a fair trial.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)

18

(citing Gray, 518 U.S. at 162–63).

19

C.

20

Habeas review is also not available for claims that have been procedurally defaulted.

21

A claim may be procedurally defaulted in one of two ways. First, a claim is procedurally

22

defaulted when it was raised in state court, but the state court denied relief based upon “an

23

independent and adequate state procedural rule.” Coleman v. Thompson, 501 U.S. 722, 750

24

(1991). Second, claims that were not exhausted in state court are procedurally defaulted if

25

the district court determines that a return to state court would be futile because procedural

26

rules would eliminate “the likelihood that a state court will accord the habeas petitioner a

27

hearing on the merits of the claim.” Harris v. Reed, 489 U.S. 255, 268–70 (1989) (O’Connor,

28

J., concurring). A federal court may only hear a claim that has been procedurally defaulted

Procedural Default

-4-

1

if a petitioner “can demonstrate cause for the default and actual prejudice as a result of the

2

alleged violation of federal law, or demonstrate that failure to consider the claims will result

3

in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

4

D.

5

A federal court reviewing a habeas petition can only reverse those decisions of a state

6

court that were “contrary to, or involved an unreasonable application of” clearly established

7

federal law. Williams v. Taylor, 529 U.S. 362, 391 (2000). Clearly established federal law

8

consists of “the governing principle or principles set forth by the Supreme Court at the time

9

the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003) (citing

10

Bell v. Cone, 535 U.S. 685, 698 (2002)). Habeas is not granted merely when a federal court

11

disagrees with a state court’s constitutional interpretation: “the most important point is that

12

an unreasonable application of federal law is different than an incorrect application of

13

federal law.” Williams, 529 U.S. at 410 (emphasis in original). A state court decision is

14

contrary to clearly established federal law when it “arrives at a conclusion opposite to that

15

reached by the Supreme Court on a question of law.” Taylor v. Lewis, 460 F.3d 1093, 1097

16

n.4 (9th Cir. 2006) (citing Williams, 529 U.S. at 405–06). A state court involves an

17

unreasonable application of clearly established federal law when it “correctly identifies a

18

governing rule but applies it to a new set of facts that is objectively unreasonable.” McNeal

19

v. Adams, 623 F.3d 1283, 1288 (9th Cir. 2010). When applying these standards, a habeas

20

court “should review the last reasoned decision by a state court.” Robinson v. Ignacio, 360

21

F.3d 1044, 1055 (9th Cir. 2004).

22

II.

Standard of Review

Discussion

23

The R & R recommends denying Ground Two because it alleges only errors of state

24

law, and recommends denying Ground One on the merits. Petitioner has filed a general

25

objection based upon the allegation that he did not receive a timely copy of Respondent’s

26

Answer, and has made further objections to Magistrate Judge Burns’s analysis on both

27

claims. This Court has conducted a de novo review, and adopts Magistrate Judge Burns’s R

28

& R in part and rejects it in part. The following discussion addresses Petitioner’s objections
-5-

1

in turn.

2

A.

Failure to Receive the Response

3

After the R & R was issued, Petitioner filed a “Motion to Strike Magistrate’s Report

4

and Recommendation” based upon Respondent’s alleged failure to provide Petitioner with

5

a copy of its Answer. On February 27, Respondent stated that it had mailed the Answer to

6

Petitioner, but for convenience sake it provided him with another copy, and stated that it had

7

no objection to allowing Petitioner additional time to file his objections to the R & R. (Doc.

8

22). Before the Court could rule on Petitioner’s motion, he filed a timely objection, and then

9

filed a supplement and an errata one week later. (Docs. 24, 25). Because of the apparent

10

confusion regarding Petitioner’s access to the Answer, this Court has considered thoroughly

11

all of the material submitted by Petitioner, including material that would otherwise be

12

untimely. Petitioner has thereby suffered no harm if, in fact, there was a delay in providing

13

him with the Answer.

14

B.

Ground Two

15

Magistrate Judge Burns recommended dismissing Claim Two because “federal habeas

16

corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

17

In his objections, Petitioner objects by arguing that the claim was made under the Due

18

Process clause, alleging that he was denied notice and a hearing when the court adjusted the

19

length of his presentence credit.1 See Matthews v. Eldridge, 424 U.S. 319 (1976). Ground

20

Two relies on a state law argument, namely that “the State cannot correct an illegally lenient

21

sentence in absence of an appeal or cross-appeal by the state.” (Doc. 7 at 7). The fact that

22

Petitioner makes “general appeals to broad constitutional principles” by referring in the

23

Ground’s title to “the guarantee of Due Process by abuse of discretion” does not transform

24
25
26
27
28

1

Petitioner continuously refers to the trial court “resentenc[ing] him” or “alter[ing] the
sentence.” (Doc. 24 at 8). In fact, the trial court did not alter the sentence, which remained
at 22 years. The court corrected the number of days that Petitioner received for his
presentence incarceration, because its original calculation had been in error, as Petitioner
does not deny.
-6-

1

it into a federal claim. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Moreover, this

2

claim was never framed as a federal one during his state court proceedings: he did not raise

3

any claim comparable to Ground Two in his direct appeal, and he framed the question as one

4

of state law in his Rule 32 proceeding. (Doc. 18-6, Ex. MM). Petitioner never “explicitly

5

indicated” to the state courts that his claim contesting the minute entry “was a federal one.”

6

Lyons, 232 F.3d at 669. Moreover, this unexhausted claim is procedurally defaulted;

7

Petitioner cannot now return to state court and file a Rule 32 petition claiming that his federal

8

due process rights were violated, because the time to file a Rule 32 petition has long passed.

9

See ARIZ. R. CRIM. P. RULE 32.4; Harris, 489 U.S. at 268–70.
C.

10

Ground One
1.

11

Background

12

Petitioner further claims that Magistrate Judge Burns misapplied applicable Sixth

13

Amendment case law in denying Claim One.2 Petitioner’s trial began on August 8, 2005.

14

(Doc. 15-5, Ex. K). Closing arguments were held on August 25, 2005. (Doc. 17-5, Ex. U).

15

On August 30, 2005, at 1:30 p.m., the jurors submitted a note to the judge stating that they

16

were at an impasse, and requesting access to letters from Petitioner to his daughter B. that

17

had been referenced during the trial.3 (Doc. 15-1, Ex. E). The trial judge instructed the jury

18

to keep deliberating, and to consider only the evidence that had been admitted at trial. (Id.).

19

At 3:20 p.m., the jury sent another letter, which read, “we are at an impasse as to agreement

20

on a verdict and have exhausted discussion possibilities.” (Doc. 17-7, Ex. W at 3:8–10). The

21

judge proposed a number of possible options to the attorneys, including declaring a mistrial,

22
23
24
25
26
27
28

2

Respondent argues that Ground One has not been exhausted and is procedurally defaulted
because Petitioner styled it as a Fifth Amendment claim, rather than a Sixth Amendment
claim as he did in his state court proceedings. (Doc. 15 at 19). Since Petitioner is an inmate
proceeding pro se, his pleadings “must be held to less stringent standards than formal
pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court
interprets Ground One as a Sixth Amendment Claim, which Respondent acknowledges
Petitioner has exhausted. (Doc. 15 at 19 n.10).

3

The letters had not been admitted into evidence.
-7-

1

asking the jury to leave for the day and return in the morning, or summoning the jury and

2

asking the presiding juror if there are “any issues we can help with.” (Doc. 17-7, Ex. W at

3

3:20–21). The judge noted that if the jury identified an issue, he would permit parties to

4

deliver twenty minutes of supplemental argument on that issue alone. Petitioner’s attorney

5

stated, “No. I don’t have that kind of confidence in myself.” (Id. at 5:2–3). Petitioner’s

6

attorney instead suggested giving a “dynamite instruction,”4 and the State’s attorney said,

7

“Let’s go ahead and declare a mistrial.” (Id. at 7:12–13). The judge proceeded to call back

8

the jury and asked them to continue to deliberate, stating that “you may wish to identify for

9

the court and counsel which issues or questions or law or fact you would like counsel or the

10

court to assist you with.” (Id. at 11:19–21). He continued by stating that “[i]f it is reasonably

11

probable that you could reach a verdict as a result of this procedure, it would be wise to give

12

it a try.” (Id. at 12:4–6). The court took a recess, and at 5:00 pm, the jury presented the

13

following note:
The impasse is not related to whether or not Natalie committed
suicide. (We are all in agreement based on the evidence that she
did not.) Our differences relate to whether David pulled the
trigger. To assist us in resolving this difference, we’d like to
have the following: any information relative to B.’s interview in
N[orth] C[arolina], all the letters that David wrote to B. that
were given to the Chandler Police Department by the McFarland
family. We do not feel this request is unreasonable given the
fact that both items were mentioned in the discussion in open
court. And number two, [we] would also like clarification
regarding the fingerprint lifted off the murder weapon. Were
they found not to be David Kiehle’s or were they inclusive to
whether they were his?
Id. at 13:22–14:11.

14
15
16
17
18
19
20
21

The trial judge told both attorneys that they would have twenty minutes to address the jury
22
the next day. Petitioner’s counsel stated that supplemental argument would be inappropriate
23
because the jurors had asked to see inadmissible evidence, and “if the State starts intimating
24
25
26
27
28

4

A “dynamite instruction,” called an Allen charge in federal court, is a “supplemental jury
instruction given by the court to encourage a deadlocked jury, after prolonged deliberations,
to reach a verdict.” Black’s Law Dictionary 87 (9th ed. 2009). See Allen v. United States, 164
U.S. 492 (1896).
-8-

1

or trying to draw an inference to what is in [the letters] it’s objectionable.” (Doc. 17-7, Ex.

2

W at 15:25–16–1). The judge responded that they would reconvene the next day and that

3

each side would have twenty minutes to address the jury. (Id. at 17:3–7).

4

The next day, Petitioner’s counsel filed a motion for a mistrial, which the court

5

denied. (Doc. 15-1, Ex. E). The state’s attorney gave supplemental argument in which he

6

argued, among other things, that an 11-year old child such as B. could not have caused the

7

bruising on Natalie’s body. Petitioner’s attorney did not address the jury, but made an oral

8

motion for a mistrial based upon the State’s attorney’s supplemental argument. (Doc. 17-7,

9

Ex. X, at 14:3–10). The jury returned with a verdict that Petitioner was not guilty of first

10

degree murder but was guilty of second degree murder. (Doc. 17-7, Ex. Y at 3).

11

Before analyzing the R & R and Petitioner’s objections to it, it is important to clarify

12

that Petitioner is not making a claim that the judge’s request for supplemental argument

13

constituted coercion. See, e.g., U.S. v. Evanston, 651 F.3d 1080 (9th Cir. 2011) (“Because

14

the parties were alerted to the factual issues dividing the jury, they could tailor their

15

arguments accordingly.”). Although the coercion argument made up the substance of

16

Petitioner’s initial motion for a mistrial, it was not included in his original direct appeal, was

17

not mentioned in his Rule 32 proceeding, and has not been mentioned in this habeas

18

proceeding. Petitioner adopts some of the argument from the motion for a mistrial in his

19

objection, writing, for example, that “the trial court then . . . allowed the attorneys to make

20

a new round of closing argument to the jury based on the revealed subjective thought process

21

of the jury.” (Doc. 24 at 9). Nevertheless, the only claim cognizable in his habeas proceeding

22

is that he was denied his right to be effectively represented by counsel at the supplemental

23

briefing. (Doc. 7 at 6). To the extent that he presents argument that the judge’s actions

24

constituted coercion, these arguments were never presented to the Arizona Court of Appeals

25

as a federal claim, and therefore have not been exhausted, and have subsequently been

26

procedurally defaulted.

27
28

2.

Merits

Turning to the merits of Petitioner’s Sixth Amendment claim, Petitioner claims that
-9-

1

he was denied the effective assistance of counsel both in the general test applied under

2

Strickland v. Washington, 466 U.S. 668 (1984), and the narrow exception detailed in U.S. v.

3

Cronic, 466 U.S. 648 (1984). Under Strickland, relief may be granted only when a petitioner

4

shows both that “counsel’s performance was deficient” and that “the deficient performance

5

prejudiced the defense.” Strickland, 466 U.S. at 687. Under Cronic, a petitioner need not

6

show that a deficient performance prejudiced the result under three defined circumstances.

7

Cronic, 466 U.S. at 659–60.

8

Parties agree that the trial court’s denial of Petitioner’s Rule 32 petition constitutes

9

the last reasoned decision on Petitioner’s Strickland and Cronic claims. (Doc. 18-6, Ex.

10

PP).The trial court found that Petitioner’s attorney had not performed deficiently because it

11

was “patently obvious” that waiving the supplemental argument was “part of Defendant’s

12

trial tactics,” and that having seen the entire trial, “no one could deem the representation

13

deficient.” (Doc. 18-6, Ex. PP). Further, the trial court concluded that Petitioner had not been

14

prejudiced, because it was clear from the jury’s note that it had ruled out suicide, and “[t]he

15

evidence clearly showed that the young girl was not the shooter.” (Id.). The trial court found

16

that Cronic did not apply because, although Petitioner’s lawyer did not make supplemental

17

argument, he “was never absent and was never prevented from assisting Defendant at any

18

stage of the trial.” (Doc. 18-6, Ex. PP). Magistrate Judge Burns found that this decision was

19

not an unreasonable application of Cronic, because the Supreme Court has never held that

20

the unique factual circumstance of a supplemental briefing in response to a jury note is a

21

“critical stage,” and that the trial court’s Strickland analysis was reasonable. (Doc. 19 at

22

14–18).

23

Petitioner’s principal objection is that the deferential standard of review under

24

AEDPA is not appropriate here because the trial court’s order denying the Rule 32 petition

25

did not cite to Strickland and did not analyze all three circumstances under which Cronic

26

may afford relief. (Doc. 24 at 10). In the Ninth Circuit, the deference ordinarily applied under

27

AEDPA is relaxed in circumstances where a “state court does not furnish a basis for its

28

reasoning,” because in those circumstances “federal courts are left simply to speculate about
- 10 -

1

what ‘clearly established law’ the state court might have applied.” Delgago v. Lewis, 223

2

F.3d 976, 982 (9th Cir. 2000) (overruled in part by Lockyer v. Andrade, 538 U.S. 63, 74–77

3

(2003)).

4

a.

Strickland

5

Although the trial court did not cite directly to Strickland, it analyzed Petitioner’s

6

ineffective assistance claim under the two well-understood Strickland prongs: whether

7

Petitioner’s attorney’s performance was deficient, and whether Petitioner was prejudiced by

8

that deficiency. (Doc. 18-6, Ex. PP). The Court does not need to “speculate” about which

9

federal law the trial court applied, and heightened AEDPA scrutiny is appropriate. Delgago,

10

223 F.3d at 982. Moreover, the trial court’s finding that Strickland relief is not available

11

because Defendant was not prejudiced once it became clear that the jury had ruled out his

12

theory of the case was correct under any standard of review. This Court has reviewed the trial

13

transcript and found that there was no evidence presented at trial from which a reasonable

14

jury could have found that B. shot her mother. (Docs. 15–17). Petitioner cites to Martin v.

15

Rose, 744 F.2d 1245, 1250 (6th Cir. 1984) in which the Sixth Circuit held that refusing to

16

participate in a trial in hopes of winning on appeal was grounds for finding that an attorney’s

17

performance was deficient, particularly “since the attorney was aware of a strong defense that

18

he could present without compromising his earlier motions.” Martin is not a Supreme Court

19

case, so disagreeing with it does constitute an unreasonable application of federal law.

20

Moreover, Petitioner has not alleged that his attorney could have mounted a strong defense

21

had he engaged in supplemental argument. Finally, even were the attorney’s performance

22

deficient, Petitioner has made no argument to counter the trial court’s finding that he was not

23

prejudiced by his attorney’s action. Petitioner is not entitled to relief under Strickland.

24

b.

Cronic

25

Under Cronic, a Petitioner need not show that he was prejudiced under the following

26

three narrow circumstances: 1) when a defendant is “denied counsel at a critical stage of his

27

trial,” 2) when “counsel entirely fails to subject the prosecution’s case to meaningful

28

adversarial testing,” and 3) when circumstances are present such that “although counsel is
- 11 -

1

available to assist the accused during trial, the likelihood that any lawyer, even a fully

2

competent one, could provide assistance is so small that a presumption of prejudice is

3

appropriate.” 466 U.S. at 659–60. In its minute entry on Petitioner’s Rule 32 petition, the trial

4

court judge discussed each of the first two prongs of Cronic, noting that Petitioner’s attorney

5

“was never prevented from assisting Defendant at any stage of the trial” and that he

6

“subjected the State’s case’s case to vigorous adversarial testing.” (Doc. 18-6, Ex. PP).

7

Neither of these findings is incorrect even under de novo review, let alone the deferential

8

standard of AEDPA. Williams, 529 U.S. 391.5 Cronic’s first prong does not apply when an

9

attorney is present and chooses not to speak, and its second prong is not to be parsed among

10

various stages the trial. See Bell v. Cone, 535 U.S. 685, 696–97 (2002) (explaining that

11

Cronic’s first prong applies only to defendants who have “actually or constructively been

12

denied counsel by government action” and that the second does not apply when a petitioner’s

13

argument “is not that his counsel failed to oppose the prosecution throughout the sentencing

14

proceeding as a whole, but that his counsel failed to do so at specific points”); see also

15

Rogers v. Marshall, No. 10-55816 VAP-MLG, 2012 WL 1739703, at *2 (9th Cir. May 17,

16

2012) (holding that Cronic is applicable “when the trial court denied his timely request for

17

representation”) (emphasis added); Florida v. Nixon, 543 U.S. 175, 192 (2004) (holding

18

Cronic is not applicable when an attorney presents no case at the guilt phase of trial and

19
20
21
22
23
24
25
26
27
28

5

In the R & R, Magistrate Judge Burns found that Cronic did not apply because “[t]he
United States Supreme Court has not extended Cronic’s first category (denial of counsel at
a critical stage) to the specific factual circumstances presented here—the decision to forego
supplemental closing argument in response to a jury’s question.” (Doc. 19 at 14). After the
R & R was issued, the Ninth Circuit held that whether any particular stage of a trial is
“critical” for purposes of Cronic may be decided on habeas review absent controlling
Supreme Court authority. See Rogers v. Marshall, No. 10-55816 VAP-MLG, 2012 WL
1739703, at *5 (9th Cir. May 17, 2012) (finding that a post-verdict motion for a new trial is
a “critical stage” even though “the Supreme Court has . . . never squarely addressed whether
a post-verdict motion for a new trial is one of those stages”). The trial court’s original ruling,
that Petitioner was not denied the right to counsel because his counsel was present and chose
not to speak, is consistent with Supreme Court precedent and not contrary to federal law. See
Bell v. Cone, 535 U.S. 685, 696–97 (2002).
- 12 -

1

focuses instead on the sentencing phase, because he may be “attempting to impress the jury

2

with his candor and his unwillingness to engage in a useless charade”).

3

The trial court did not, however, discuss the third prong of Cronic in denying

4

Petitioner’s Rule 32 motion. (Doc. 18-6, Ex. PP). Moreover, Respondent did not address

5

Cronic’s third prong in its Answer, and the R & R does not contain any discussion of

6

Cronic’s third prong. Since there is no basis in the state court record for analyzing

7

Petitioner’s claim under the third prong of Cronic, the Court is “left with no alternative but

8

to review independently” that claim. Delgago, 223 F.3d at 982. Although the Court reviews

9

the record independently, “we still defer to the state court’s ultimate decision.” Pirtle v.

10

Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

11

In Cronic, the Court wrote that a defendant need not prove prejudice under

12

circumstances where, “although counsel is available to assist the accused during trial, the

13

likelihood that any lawyer, even a fully competent one, could provide effective assistance is

14

so small that a presumption of prejudice is appropriate without inquiry into the actual

15

conduct of the trial.” 466 U.S. 659–60. It suggested that such a circumstance had been

16

present in the well-known trial of the defendants often referred to as the Scottsboro Boys.

17

Powell v. Alabama, 287 U.S. 45 (1932). In that case, an out-of-state lawyer unfamiliar with

18

a complex criminal case had been assigned on the day of the trial to represent defendants

19

who were “young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth

20

under guard of soldiers, charged with an atrocious crime regarded with especial horror in the

21

community where they were to be tried,” and who were thereby “put in peril of their lives

22

within a few moments after counsel for the first time charged with any degree of

23

responsibility began to represent them.” Cronic, 466 U.S. at 660. Under such extreme trial

24

circumstances, “the likelihood that counsel could have performed as an effective adversary

25

was so remote as to have made the trial inherently unfair.” Id. at 660–61. In Cronic itself, the

26

Court found these special circumstances had not been met when the “court appointed a young

27

lawyer with a real estate practice to represent respondent, but allowed him only 25 days for

28

pretrial preparation, even though it had taken the Government over four and one-half years
- 13 -

1

to investigate the case and it had reviewed thousands of documents during that

2

investigation.” Cronic, 466 U.S. at 649.

3

The third prong of Cronic, therefore, while technically an ineffective assistance of

4

counsel claim, may be better understood as a claim that the defendant’s trial was so

5

fundamentally flawed that no effective assistance was possible. Cronic, 466 U.S. at 661 (the

6

third prong applies in “a case in which the surrounding circumstances made it so unlikely that

7

any lawyer could provide effective assistance that ineffectiveness was properly presumed

8

without inquiry into actual performance at trial”). Relief under the third prong of Cronic is

9

granted only in extreme circumstances. For example, a defendant who was tried by a jury on

10

which seven of the twelve jurors had recently sat on a jury that had convicted his co-

11

conspirators was entitled to relief because the fact that the jurors had heard and ruled on the

12

other case made “the adversary process itself presumptively unreliable.” Quintero v. Bell,

13

368 F.3d 892, 893 (6th Cir. 2004), cert. denied, 544 U.S. 936. When a trial court prevents

14

an attorney from engaging in the adversarial process, for example by prohibiting him from

15

cross-examining a witness that has implicated his client, the third prong of Cronic may be

16

implicated, because the error is “of the first magnitude and no amount of showing of want

17

of prejudice would cure it.” U.S. v. Bagley, 473 U.S. 667, 677 (1985) (citing Cronic, 466

18

U.S. at 659).

19

Cases in which there may have been some error do not necessarily give rise to relief

20

under the third prong of Cronic. Relief is not available, for example, when a judge fails to

21

inquire as to whether petitioner’s trial lawyer is operating under a conflict of interest.

22

Mickens v. Taylor, 535 U.S. 162, 173 (2002) (“The trial court’s awareness of a potential

23

conflict neither renders it more likely that counsel’s performance was significantly affected

24

nor in any other way renders the verdict unreliable.”). Demonstrating that an attorney was

25

mentally ill is not sufficient grounds for imposing Cronic’s presumption of prejudice. Smith

26

v. Ylst, 826 F.2d 872, 867 (9th Cir. 1987) (“Although there is merit to the argument that a

27

mentally unstable attorney may make errors of judgment . . . it is reasonable to treat such

28

cases under the general rule requiring a showing of prejudice.”).
- 14 -

1

Petitioner argues that the circumstances of the supplemental briefing created a

2

situation in which no lawyer, even a skilled one, could provide him effective assistance of

3

counsel. (Doc. 24 at 12). As noted above, the Ninth Circuit has recently issued a decision

4

regarding judicial coercion in circumstances markedly similar to Petitioner’s trial. In U.S. v.

5

Evanston, 651 F.3d 1080, 1082 (9th Cir. 2011), the court considered the following question:

6

In a case of first impression, we examine whether a district court
may, over defense objection and after the administration of an
unsuccessful Allen charge, inquire into the reasons for a trial
jury’s deadlock and then permit supplemental argument focused
on those issues, where the issues in dispute are factual rather
than legal. We conclude that allowing such a procedure in a
criminal trial is an abuse of the discretion accorded district
courts in the management of jury deliberations.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

In Evanston, as in Petitioner’s trial, the jury twice wrote that it was deadlocked, and the trial
court inquired as to the status of the jury’s deliberation before requesting supplemental
argument. Id. at 1088. Here, however, Petitioner does not challenge the judge’s actions
directly, and were he to, such a challenge would fail. As the court in Evanston noted, the
Arizona Rules of Criminal Procedure explicitly allow for instructions such as the one issued
here. See ARIZ. R. CRIM. P. 22.4. The Ninth Circuit in Evanston went out of its way to note
that “Arizona’s rule—the first to explicitly allow for supplemental closing arguments of this
nature—was adopted as an alternative means of addressing jury questions and impasse.” 651
F.3d at 1089. The Ninth Circuit explicitly approved of the Arizona state rule, even while
stating that federal criminal courts may not adopt the same rule. Id. (“[E]ach of these states
has had the benefit of the formal rulemaking process to weigh the benefits and risks of
allowing supplemental argument.”).
More importantly, however, Petitioner is not challenging the supplemental briefing
process directly. Instead he argues that by adopting the process—explicitly allowed for by
the Arizona Rules of Criminal Procedure—the trial court transformed the trial into one where
“the likelihood that counsel could have performed as an effective adversary was so remote
as to have made the trial inherently unfair.” Cronic, 458 at 660–61. The State’s attorney,
when provided the opportunity to deliver a supplemental briefing, acknowledged that the

28
- 15 -

1

fingerprints on the gun were not David’s, stated that the evidence showed that B. adored her

2

mother, and suggested that an 11-year-old could not have caused the bruising found on

3

Natalie’s throat and under her skin. (Doc. 17-7, Ex. X at 5–9). The court offered Petitioner’s

4

attorney the same amount of time to rebut the prosecutor’s statements. Even though the

5

supplemental briefing took place after the parties knew some of the jury’s decisions, nothing

6

suggests that the opportunity for a fully competent attorney to provide effective assistance

7

was “so small that a presumption of prejudice is appropriate without inquiry into the actual

8

conduct of the trial.” Cronic, 466 U.S. at 660. Petitioner’s attorney could have emphasized

9

that the fingerprints were not David’s, could have sought to implicate B., could have

10

suggested that an unknown party was in the house, or could have merely expounded on the

11

standard of reasonable doubt. Indeed, in his Rule 32 action, Petitioner wrote that his attorney

12

“had to rebut this argument and failed to do so entirely.” (Doc. 18-6 at 5). There is no

13

question that once the jury had rejected Petitioner’s theory of the case, his attorney’s

14

situation was difficult. An attorney faced with a difficult argument, however, is in a

15

materially different situation than the attorney appointed to represent the Scottsboro Boys on

16

the eve of their trial. Petitioner was not constructively denied counsel to a degree whereby

17

prejudice can be presumed. Indeed, as the trial court noted, Petitioner’s counsel’s “conduct

18

of the trial exceeded the standard of practice for defense attorneys.” (Doc. 18-6, Ex. PP).

19

Claim One, and therefore the entire petition, is denied.

20

D.

Certificate of Appealability

21

When a petition for habeas corpus is rejected on the merits, a certificate of

22

appealability will only issue if the petitioner can demonstrate “that reasonable jurists would

23

find the district court’s assessment of the constitutional claims debatable or wrong.” Slack

24

v. McDaniel, 529 U.S. 473, 484 (2000). There is no debate that Ground Two is a purely state

25

claim, and that the state court’s dismissal of Petitioner’s Strickland claim under Ground One

26

was not directly contrary to federal law. As noted above, only the first two prongs of

27

Petitioner’s Cronic claim were addressed at the state court level, but there too, no reasonable

28

jurist could find that the state court’s opinion was directly contrary to federal law. Since the
- 16 -

1

third prong of Petitioner’s Cronic claim is subject to a lesser degree of review, and in light

2

of the Ninth Circuit’s recent ruling on supplemental briefing, the Court finds that a

3

reasonable jurist could find it “debatable” that Petitioner has made “a substantial showing

4

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner is therefore granted

5

a Certificate of Appealability on one issue: whether, during supplemental briefing, the trial

6

became one “in which the surrounding circumstances made it so unlikely that any lawyer

7

could provide effective assistance that ineffectiveness was properly presumed without

8

inquiry into actual performance at trial.” Cronic, 466 U.S. at 661.
CONCLUSION

9
10

As Magistrate Judge Burns noted in the R & R, Petitioner’s second claim is a purely

11

state issue, and his first claim was properly decided by the trial judge in his order denying

12

Petitioner’s Rule 32 proceeding. Since the trial judge did not address whether the

13

supplemental briefing process resulted in a constructive denial of counsel under Cronic’s

14

third prong, however, that question is reviewed under a less stringent standard by this Court,

15

which nevertheless finds that Petitioner was not denied his constitutional right to counsel. He

16

is granted a Certificate of Appealability only on the limited issue of whether the

17

supplemental briefing denied him of his right to counsel under the third prong of Cronic.

18

IT IS THEREFORE ORDERED:

19

1.

20
21
22
23
24
25

Petitioner’s Amended Petition for the Writ of Habeas Corpus (Doc.7) is

denied.
2.

Petitioner’s Motion for Cause Respondents to Serve Answer Pleading on

Petitioner (Doc. 21) is dismissed as moot.
3.

The Report and Recommendation (Doc. 19) is accepted in part and rejected

in part.
4.

Petitioner is issued a Certificate of Appealability for the limited issue of

26

whether the supplemental briefing denied him his Sixth Amendment rights because it

27

presented a special circumstance where “the likelihood that any lawyer, even a fully

28

competent one, could provide assistance is so small that a presumption of prejudice is
- 17 -

1

appropriate.” Cronic, 466 U.S. at 659–660.

2

DATED this 30th day of May, 2012.

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