Creamer v. Ryan et al

Filing 30

REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Habeas Corpus (State/2254) be denied and dismissed with prejudice. The District Court must "issue or deny a certificate of appealability when it enters a final order adverse to th e applicant." IT IS FURTHER recommended that, should the Report and Recommendation be adopted and, should Petitioner seek a certificate of appealability, a certificate of appealability should be denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required. Signed by Magistrate Judge Mark E Aspey on 1/3/14. (LSP)

1
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Ronald Creamer,

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Petitioner,

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11

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

v.
Charles L. Ryan,
Arizona Attorney General,

12

Respondents.
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_______________________________

CIV 12-01781 PHX SRB (MEA)
REPORT AND RECOMMENDATION

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15

TO THE HONORABLE SUSAN R. BOLTON:

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Petitioner, proceeding pro se, filed a petition for

17

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on or about

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August 16, 2012.

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Writ of Habeas Corpus (“Answer”) (Doc. 12) on February 25, 2013.

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In

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Petitioner until sixty days after the date the District Court

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decided Petitioner’s motion for emergency injunctive relief to

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file a reply to the answer to his petition.

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decision on the motion for injunctive relief was issued October

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29, 2013.

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answer to his petition was due December 30, 2013.

27
28

an

order

Respondents filed an Answer to Petition for

issued

September

See Doc. 29.

24,

2013,

the

Court

allowed

See Doc. 25.

The

Accordingly, Petitioner’s reply to the

1

I Procedural History

2

An information filed June 14, 2004, charged Petitioner

3

with one count of third-degree burglary and one count of theft.

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See Answer, Exh. A.

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four historical felony convictions, i.e., a conviction for

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“criminal simulation” and three convictions for theft.

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state further alleged that Petitioner had committed the charged

8

offenses while on release for the most recent of the previous

9

theft convictions.

The state also alleged that Petitioner had

The

See id., Exhs. C & D.

10

On October 28, 2004, Petitioner filed a pro se motion

11

asking the trial court for the appointment of alternate counsel

12

because, he alleged, his relationship with his attorney was

13

irretrievably compromised.

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the trial court discussed the motion with Petitioner and his

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attorney, and then denied the motion. Id., Exhs. F & G.

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November 4, 2004, at the conclusion of a one-day trial, a jury

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found Petitioner guilty as charged.

18

Id., Exh. E.

On November 1, 2004,

On

Id., Exhs. H–O.

The state court conducted a sentencing hearing on

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December 14, 2004.

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that Petitioner had four historical prior felony convictions.

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The trial court declined to follow the state’s recommendation

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that it impose an aggravated term of fifteen years imprisonment

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on each conviction.

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Petitioner to concurrent, slightly aggravated terms of twelve

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years imprisonment on each of the counts of conviction.

26

Exh. Q at 20–21; Exh. R at 2–3.

Id., Exhs. Q & R.

The state trial court instead sentenced

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28

The state court found

-2-

Id.,

1

Petitioner

took

a

timely

direct

appeal of his

2

convictions and sentences.

3

counsel

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meritorious issues to raise on appeal.

5

filed a pro se opening brief in his direct appeal raising four

6

claims for relief.

7

Blakely claim, a claim of ineffective assistance of counsel

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because his counsel was not replaced after “irreconcilable

9

conflict”, a claim that he was not allowed to present mitigating

10

evidence regarding sentencing, and a claim of prosecutorial

11

misconduct,

12

incorrect statements about Petitioner at trial and sentencing.

13

See Doc. 1, Exh. B.

14

issued March 30, 2006, the Arizona Court of Appeals affirmed

15

Petitioner’s convictions and sentences. Id., Exh. B.

filed

a

i.e.,

brief

Petitioner’s appointed appellate

indicating

counsel
Id.

could

Exh. S.

find

no

Petitioner

In his pro se brief Petitioner presented a

he

asserted

that

the

prosecution

made

In an unpublished memorandum decision

16

On October 18, 2006, the Arizona Court of Appeals

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issued an order addressing Petitioner’s substitution-of-counsel

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claim, which it had previously construed in his direct appeal as

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an ineffective assistance of counsel claim; the appellate court

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denied relief on the claim.

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Petitioner sought review of this decision by the Arizona Supreme

22

Court, which summarily denied review.

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United States Supreme Court denied Petitioner’s petition for a

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writ of certiorari on December 3, 2007.

25

G.

Id. (Doc. 1), Exh. D, Attach. B.

See Answer, Exh. Z.

The

See Doc. 1, Exhs. E, F,

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Prior to the denial of certiorari, on July 3, 2007,

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Petitioner initiated a state action for post-conviction relief

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1

pursuant to Rule 32, Arizona Rules of Criminal Procedure.

2

(Doc. 1), Exh. M.

3

claim corresponding to his third federal habeas claim, and two

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ineffective-assistance-of-counsel claims which correspond to his

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fourth and fifth federal habeas claims.

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Petitioner also filed an amendment to his Rule 32 pleading in

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which he raised an ineffective assistance claim that corresponds

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to his sixth federal habeas claim.

9

Id.

In his Rule 32 action Petitioner asserted a

See id., Exh. H.

Id., Exh. I.

In a decision issued November 20, 2008, the state trial

10

court denied post-conviction relief.

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decision issued August 22, 2011, the Arizona Court of Appeals

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summarily denied a petition for review of this decision.

13

Exh. K & Exh. L.

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On

August

16,

2012,

Doc. 1, Exh. J.

Petitioner

filed

the

In a

Id.,

pending

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federal habeas petition in this Court, raising six claims for

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relief.

17

Respondents also allow that Petitioner’s claims for relief are

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exhausted in the state courts.

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II Standard of review

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The Court may not grant a writ of habeas corpus to a

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state prisoner on a claim adjudicated on the merits in state

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court proceedings unless the state court reached a decision

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contrary to clearly established federal law, or the state court

24

decision was an unreasonable application of clearly established

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federal law.

26

U.S. 70, 75, 127 S. Ct. 649, 653 (2006); Musladin v. Lamarque,

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555 F.3d 834, 838 (9th Cir. 2009).

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Respondents allow that the petition is timely filed.

See 28 U.S.C. § 2254(d); Carey v. Musladin, 549

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“Under AEDPA, a federal

1

court may not grant a petition for a writ of habeas corpus

2

unless

3

‘contrary

4

clearly established Federal law, as determined by the Supreme

5

Court of the United States.’”

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1376, 1390 (2012), quoting 28 U.S.C. § 2254(d)(1).

the

state

to,

or

court’s

adjudication

involved

an

on

unreasonable

the

merits

was

application

of,

Lafler v. Cooper, 132 S. Ct.

7

A state court decision is contrary to federal law if it

8

applied a rule contradicting the governing law of United States

9

Supreme Court opinions, or if it confronts a set of facts that

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is materially indistinguishable from a decision of the Supreme

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Court but reaches a different result.

12

Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438 (2005);

13

Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S. Ct. 2140, 2149

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(2004); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012),

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cert. denied, 133 S. Ct. 2766 (2013).

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court’s decision is considered contrary to federal law if the

17

state court erroneously applied the wrong standard of review or

18

an incorrect test to a claim.

19

U.S. 111, 121, 129 S. Ct. 1411, 1419 (2009); Wright v. Van

20

Patten, 552 U.S. 120, 124–25, 128 S. Ct. 743, 746–47 (2008);

21

Runningeagle, 686 F.3d at 784-85; Norris v. Morgan, 622 F.3d

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1276, 1288 (9th Cir. 2010).

23

724, 737 (9th Cir. 2008); Bledsoe v. Bruce, 569 F.3d 1223, 1233

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(10th Cir. 2009).

25

A

state

court

See, e.g., Brown v.

For example, a state

See Knowles v. Mirzayance, 556

See also Frantz v. Hazey, 533 F.3d

decision

involves

an

unreasonable

26

application of clearly established federal law if it correctly

27

identifies a governing rule but applies it to a new set of facts

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-5-

1

in a way that is objectively unreasonable, or if it extends, or

2

fails to extend, a clearly established legal principle to a new

3

set of facts in a way that is objectively unreasonable.

4

McNeal v. Adams, 623 F.3d 1283, 1287–88 (9th Cir. 2010).

5

considering such a claim, “a habeas court must determine what

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arguments or theories supported or ... could have supported, the

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state court’s decision; and then it must ask where it is

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possible fair-minded jurists could disagree that those arguments

9

or

theories

are

inconsistent

10

decision of this Court.”

11

with

the

holding

in

a

See
When

prior

786 (2011).

Harrington v. Richter, 131 S. Ct. 770,

12

The state court’s determination of a habeas claim may

13

be set aside under the unreasonable application prong if, under

14

clearly

15

“unreasonable

16

principle to a context in which the principle should have

17

controlled.”

18

2113, 2120 (2000).

19

994 (9th Cir. 2010).

20

unreasonable application of clearly established federal law only

21

if it can be considered objectively unreasonable.

22

Renico v. Lett, 559 U.S. 766, 130 S. Ct. 1855, 1862 (2010);

23

Runningeagle, 686 F.3d at 785.

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law is different from an incorrect one.

25

at 1862; Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005).

26

“That test is an objective one and does not permit a court to

27

grant

28

established

relief

in

federal

refusing

law,

to

the

extend

[a]

state

court

governing

was
legal

Ramdass v. Angelone, 530 U.S. 156, 166, 120 S. Ct.
See also Cheney v. Washington, 614 F.3d 987,

simply

However, the state court’s decision is an

because

See, e.g.,

An unreasonable application of

the

-6-

See Renico, 130 S. Ct.

state

court

might

have

1

incorrectly applied federal law to the facts of a certain case.”

2

Adamson v. Cathel, 633 F.3d 248, 255–56 (3d Cir. 2011).

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7
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12
13
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A state court’s determination that a claim
lacks merit precludes federal habeas relief
so
long
as
“fairminded
jurists
could
disagree” on the correctness of the state
court’s decision. Yarborough v. Alvarado, 541
U.S. 652, 664, 124 S. Ct. 2140,[ ] (2004).
And
as
this
Court
has
explained,
“[E]valuating whether a rule application was
unreasonable requires considering the rule’s
specificity. The more general the rule, the
more leeway courts have in reaching outcomes
in case-by-case determinations.” Ibid. “[I]t
is not an unreasonable application of clearly
established Federal law for a state court to
decline to apply a specific legal rule that
has not been squarely established by this
Court.” Knowles v. Mirzayance, 556 U.S. 111,
129 S.Ct. 1411, 1413–14, [ ] (2009) (internal
quotation marks omitted).
Harrington, 131 S. Ct. at 786.

27

The phrase “clearly established Federal law”
refers to “the holdings, as opposed to the
dicta,” of the Supreme Court’s decisions “as
of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362,
412, 120 S. Ct. 1495 [ ] (2000). A state
court's decision is “contrary to” this body
of law if it applies a rule that contradicts
the governing law articulated by the Supreme
Court or arrives at a result different than
that reached by the Supreme Court in a case
with materially indistinguishable facts. Id.
at 405–06, 529 U.S. 362, 120 S. Ct. 1495, [].
A decision involves an “unreasonable
application” of clearly established federal
law if it “identifies the correct governing
legal principle ... but unreasonably applies
that principle to the facts of the prisoner’s
case.” Id. at 413, 529 U.S. 362, 120 S. Ct.
1495 []. The Supreme Court has emphasized
that “an unreasonable application of federal
law
is
different
from
an
incorrect
application of federal law.” Id. at 410, 529
U.S. 362, 120 S. Ct. 1495, []. Accordingly,
“a federal habeas court may not issue the
writ simply because that court concludes in
its independent judgment that the relevant

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16
17
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20
21
22
23
24
25
26

1

state-court
decision
applied
clearly
established federal law erroneously or
incorrectly.” Id. at 411, 529 U.S. 362, 120
S. Ct. 1495. Instead, the court must
determine
whether
the
state
court's
application of Supreme Court precedents was
objectively unreasonable. Id. at 409, 529
U.S. 362, 120 S. Ct. 1495, []. Although the
Supreme Court’s decisions are the focus of
the unreasonable-application inquiry, we may
look to Ninth Circuit case law as “persuasive
authority for purposes of determining whether
a particular state court decision is an
‘unreasonable application’ of Supreme Court
law.” Duhaime v. Ducharme, 200 F.3d 597, 600
(9th Cir. 2000).

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3
4
5
6
7
8
9
10

Howard v. Clark, 608 F.3d 563, 567–68 (9th Cir. 2010).

11

Accordingly, if the Supreme Court has not addressed a

12

specific issue in its holdings, the state court’s adjudication

13

of the issue cannot be an unreasonable application of clearly

14

established federal law.

15

881 (9th Cir. 2007), citing Kane v. Garcia Espitia, 546 U.S. 9,

16

10, 126 S. Ct. 407, 408 (2006).

17

issue raised by the petitioner “is an open question in the

18

Supreme Court’s jurisprudence,” the Court may not issue a writ

19

of habeas corpus on the basis that the state court unreasonably

20

applied clearly established federal law by rejecting the precise

21

claim presented by the petitioner.

22

Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007).

23

United States Supreme Court “has held on numerous occasions that

24

it is not an unreasonable application of clearly established

25

Federal law for a state court to decline to apply a specific

26

legal rule that has not been squarely established by this

27

Court.”

28

See Stenson v. Lambert, 504 F.3d 873,

Stated another way, if the

Cook, 538 F.3d at 1016;
The

Knowles, 129 S. Ct. at 1419, citing Wright, 552 U.S. at
-8-

1

124-25, 128 S. Ct. at 746-47.

2

Factual findings of a state court are presumed to be

3

correct and can be reversed by a federal habeas court only when

4

the

5

evidence.

6

U.S. 231, 240–41, 125 S. Ct. 2317, 2325 (2005); Miller–El v.

7

Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003);

8

Runningeagle, 686 F.3d at 763 n.1; Crittenden v. Ayers, 624 F.3d

9

943, 950 (9th Cir. 2010); Stenson, 504 F.3d at 881; Anderson v.

10

Terhune, 467 F.3d 1208, 1212 (9th Cir. 2006). The “presumption

11

of correctness is equally applicable when a state appellate

12

court, as opposed to a state trial court, makes the finding of

13

fact.”

14

1304–05 (1982).

15

has held that, with regard to claims adjudicated on the merits

16

in the state courts, “review under § 2254(d)(1) is limited to

17

the record that was before the state court that adjudicated the

18

claim on the merits.”

19

1398 (2011).

federal

20

court

is

presented

with

clear

and

convincing

See 28 U.S.C. § 2254(e)(1); Miller–El v. Dretke, 545

Sumner v. Mata, 455 U.S. 591, 593, 102 S. Ct. 1303,
Additionally, the United States Supreme Court

Cullen v. Pinholster, 131 S. Ct. 1388,

If the Court determines that the state court's decision

21

was

22

established United States Supreme Court precedent, the Court

23

must review whether Petitioner’s constitutional rights were

24

violated, i.e., the state’s ultimate denial of relief, without

25

the

deference

to

26

Anti–Terrorism

and

27

otherwise requires.

28

an

objectively

unreasonable

the

state

Effective

application

court’s
Death

of

decision

Penalty

Act

clearly

that

the

(“AEDPA”)

See Lafler, 132 S. Ct. 1389-90; Panetti v.
-9-

1

Quarterman, 551 U.S. 930, 953–54, 127 S. Ct. 2842, 2858–59

2

(2007); Runningeagle, 686 F.3d at 785-86; Greenway v. Schriro,

3

653 F.3d 790, 805–06 (9th Cir. 2011).

4

III Analysis

5

A. Petitioner’s claims for relief

6

1. Petitioner contends the trial court’s denial of his

7

motion to change counsel violated his Sixth Amendment rights.

8

Petitioner argues that the state trial court’s denial

9

of his motion to appoint alternate counsel violated his Sixth

10
11

Amendment right to the effective assistance of counsel.
The Arizona Court of Appeals rejected Petitioner’s

12

substitution-of-counsel

13

appellate court determined that, even assuming Petitioner’s

14

claims were true, counsel’s behavior was explained by his

15

obligations

16

perjury and not making false statements to the trial court, in

17

addition to being classified as strategic decisions regarding

18

Petitioner’s

19

concluded:

20

under

the

defense.

claim

rules

The

on

of

the

ethics

Arizona

merits.

The

regarding

Court

of

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28

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21
22
23
24
25
26

suborning

Appeals

What Creamer characterizes as his attorney’s
failure to discuss the case in fact appears
to be Creamer’s reticence to allow his
attorney
to
make
the
legal
decisions
regarding his case. Disagreements over trial
strategy or a loss of confidence in one’s
attorney do not warrant the appointment of
new counsel. State v. Cromwell, 211 Ariz.
181, 186–87, ¶¶ 29–30, 119 P.3d 448, 453–54
(2005). It was a strategic choice to hear the
State’s witnesses’ testimony before counsel
advised Creamer about whether or not he
should testify. Similarly, his attorney’s
decision not to investigate the value of the
numerous stolen items was a strategic choice.

state

also

1

The attorney may have reasonably concluded
that the statutory minimum value, $3,000, was
undoubtedly met. An officer testified that a
table in the hotel room was filled with
“hundreds of vinyl records ... [t]he bed was
covered with boxed ... [t]here was computer
equipment ... there [were] a lot of boxes of
baseball cards, football cards, hockey cards
....” The victim estimated the value of these
items as being between $8,000 and $12,000.
Finally, a jury found that the items were
worth at least $3,000. Creamer’s complaints
largely address his attorney’s strategic
choices and not anything that constitutes an
irreconcilable
conflict.
Absent
an
irreconcilable conflict, the remaining Moody
factors did not warrant granting Creamer’s
motion....

2
3
4
5
6
7
8
9
10
11

Doc. 1, Exh. D, Attach. B.

12

The Arizona court’s determination that Petitioner’s

13

constitutional rights were not violated by the refusal to

14

appoint substitute counsel was not clearly contrary to nor an

15

unreasonable application of federal law.

16

have determined that when a defendant contends an irreconcilable

17

conflict has arisen with their defense counsel, the trial court

18

must

19

continued representation.

20

475, 484, 98 S. Ct. 1173, 1179 (1978).

21

indicates dissatisfaction with his counsel, the trial court

22

ordinarily must conduct a thorough inquiry in order to discover

23

whether the situation is depriving the defendant of an adequate

24

defense.

25

1982).

26

granted a substitution motion, the reviewing habeas court may

27

consider the extent of the alleged conflict, whether the trial

28

-11-

conduct

a

timely

inquiry

into

the

The federal courts

propriety

of

the

See Holloway v. Arkansas, 435 U.S.
When a defendant

See Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir.
In determining whether the trial judge should have

1

judge

2

conflict,

3

counsel.

4

Cir. 2005).

5

made

an
and

appropriate
the

inquiry

timeliness

of

into
the

the

extent

motion

to

of

the

substitute

See Daniels v. Woodford, 428 F.3d 1181, 1197–98 (9th

A review of the record in this matter indicates that

6

the state trial court conducted the relevant inquiry.

7

v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992).

8

the state court’s decision that this alleged error did not

9

deprive Petitioner of a federal constitutional right was not

10

clearly contrary to nor an unreasonable application of federal

11

law.

See King

Accordingly,

12

2. Petitioner contends he was denied his right to

13

access the courts, and that his right to due process was

14

violated, because he was not interviewed by the individual who

15

prepared a presentence report for the trial court.

16

Petitioner argues that the presentence-report author’s

17

failure to interview him denied him the opportunity to place

18

mitigating factors into the record and violated his right to

19

access to the courts and his right to due process of law.

20

The Arizona Court of Appeals’ rejection of this claim

21

did not constitute an objectively unreasonable application of

22

United States Supreme Court precedent.

23

never interpreted the Sixth or the Fourteenth Amendment to

24

impose a federal constitutional obligation on a state government

25

to afford a criminal defendant a presentence interview in

26

preparation for a pending sentencing hearing, and Petitioner

27

points to no case so holding.

28

-12-

The Supreme Court has

1

The absence of such a principle from a holding of the

2

Supreme Court “as of the time the state court render[ed] its

3

decision” requires denying the habeas claim.

4

132 S. Ct. 38, 44 (2011) (internal quotation marks omitted);

5

Ponce v. Felker, 606 F.3d 596, 604 (9th Cir. 2010); Moses v.

6

Payne,

7

Petitioner has not established that the state court’s decision

8

denying relief on this claim was clearly contrary to nor an

9

unreasonable application of federal law and Petitioner is not

10

555

F.3d

742,

754

(9th

Cir.

Greene v. Fisher,

2009).

Accordingly,

entitled to relief on this claim.

11

3. Petitioner contends the method used by the state

12

trial court to call a panel of jury venire men violated his

13

constitutional rights.

14

In his third habeas claim Petitioner argues that the

15

trial court violated his right to a jury panel comprised of “the

16

whole of Maricopa County” by the trial court’s use of the

17

“Proximity Weighted Summoning System”.

18

alleges, attempted to work in favor of prospective jurors by

19

randomly assigning them to the master jury list as usual but

20

apparently weighing the prospective juror’s residential location

21

in determining to which courthouse to assign them.

22

at 10–11.

23

state

24

software that contained an algorithm designed to load jury pools

25

at any particular court center with a percentage of persons

26

residing in the zip code areas closest to that center[,]” and

27

hence “the jury pool at any given center, on any given day, was

28

-13-

This system, Petitioner

See Doc. 1

Petitioner argues that, at the time of his trial, the

court’s

director

of

jury

management

“used

computer

1

not one randomly drawn from Maricopa County as a whole”, because

2

the system’s purpose was to “ensure that persons living near the

3

southwest court complex, for example, were not required to drive

4

to the northwest court complex in order to fulfill their jury

5

responsibilities.”

Id. at 10.

6

Respondents contend Petitioner procedurally defaulted

7

this claim by failing to fairly present it to the Arizona Court

8

of Appeals in a procedurally correct manner.

9

this claim in his Rule 32 proceedings and the state court denied

10

the claim based on a state rule precluding claims that could

11

have been raised in a direct appeal.

12

Petitioner raised

A federal court may not grant a habeas petition unless

13

the petitioner has exhausted all available state remedies.

14

28 U.S.C. § 2254(b)(1)(A). A federal habeas claim is exhausted,

15

but procedurally defaulted, if it has been raised in the state

16

courts but the state court found the claim precluded by a state

17

procedural rule regarding waiver and the preclusion of claims.

18

See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S. Ct.

19

2590, 2594-95 (1991); Szabo v. Walls, 313 F.3d 392, 395 (7th

20

Cir. 2002).

21

claim

22

procedural rule,” the claim is procedurally barred in federal

23

court unless the petitioner can excuse the default by showing

24

cause and prejudice or a fundamental miscarriage of justice.

25

See Hurles v. Ryan, 706 F.3d 1021, 1032 (9th Cir. 2013),

26

petition for cert. filed, 82 U.S.L.W. 3009 (June 17, 2013).

is

If the procedural default of the federal habeas

based

on

an

“an

independent

27
28

See

-14-

and

adequate

state

1

6

A federal court is precluded from reviewing
the merits of a claim when the state court
has denied relief on the basis of an
independent and adequate state procedural
default. The state procedural bar must be
“independent” of the federal question and
“adequate to support the judgment.” A state
procedural rule constitutes an “adequate” bar
to federal court review if it was “firmly
established and regularly followed” at the
time it was applied by the state court.

7

Cooper v. Brown, 510 F.3d 870, 924 (9th Cir. 2007) (internal

8

citations omitted)

9

Arizona’s

2
3
4
5

state

rules

regarding

the

waiver

and

10

preclusion of claims have been found to be independent and

11

adequate bases for denying federal habeas relief on a claim

12

subject to those rules.

13

122 S. Ct. 2578, 2581 (2002); Ortiz v. Stewart, 149 F.3d 923,

14

931–32 (9th Cir. 1998).

Stewart v. Smith, 536 U.S. 856, 859–60,

15

Petitioner has not established cause for, nor prejudice

16

arising from his procedural default of this federal habeas

17

claim, i.e., a reason why he did not present this claim in his

18

direct appeal.

19

not established that a fundamental miscarriage of justice will

20

occur absent the Court’s consideration of the merits of the

21

claim.

22

the claim.

See Hurles, 706 F.3d at 1032.

Petitioner has

Therefore, the Court should not consider the merits of

23

4. Petitioner contends he was denied his right to the

24

effective assistance of counsel because his trial counsel did

25

not move to suppress the admission of evidence.

26

In his fourth habeas claim, Petitioner argues that he

27

received ineffective assistance of counsel because his trial

28

-15-

1

counsel failed to file a motion to suppress evidence, i.e., the

2

victim’s stolen property seized during a search of a hotel room

3

which was occupied by Petitioner and his girlfriend. Petitioner

4

contends a motion to suppress would have been successful: “the

5

court

6

discovered as a result of the warrantless search.”

7

12.

would

8

The

9

have

Petitioner’s

been

state

required

trial

ineffective

to

court

suppress

summarily

assistance

all

evidence
Doc. 1 at

denied
on

claims

all

merits,

the

of

10

concluding that “[u]nder these interesting circumstances it is

11

extremely difficult for this Court to find a material fact in

12

support of the Petitioner’s claim of ineffective assistance of

13

counsel”. The state court’s decision denying this claim was not

14

an

15

precedent.

objectively

16

unreasonable

application

of

Supreme

Court

To state a claim for ineffective assistance of counsel,

17

a

18

performance was deficient and that the deficiency prejudiced the

19

outcome

20

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

21

The

22

counsel’s

23

professional

24

circumstance.

25

Counsel’s performance will be held constitutionally deficient

26

only if the habeas petitioner proves counsel’s actions “fell

27

below an objective standard of reasonableness,” as measured by

28

-16-

habeas

petitioner

of

his

petitioner

must

criminal

must

conduct

show

proceedings.

overcome
was

assistance

both

the

within

of

his

See

strong

the

required

that

range

attorney’s

Strickland

presumption
of

attorneys

v.

that

reasonable
in

that

See id., 466 U.S. at 687, 104 S. Ct. at 2064.

1

“prevailing professional norms.” Strickland, 466 U.S. at 688,

2

104 S. Ct. at 2064-65.

3

987, 994–95 (9th Cir. 2010).

4

See also Cheney v. Washington, 614 F.3d

10

To establish deficient performance, a person
challenging a conviction must show that
counsel’s representation fell below an
objective standard of reasonableness. A court
considering a claim of ineffective assistance
must
apply
a
strong
presumption
that
counsel’s representation was within the wide
range' of reasonable professional assistance.
The challenger's burden is to show that
counsel made errors so serious that counsel
was
not
functioning
as
the
“counsel”
guaranteed the defendant by the Sixth
Amendment.

11

Premo v. Moore, 131 S. Ct. 733, 739 (2011) (internal citations

12

and quotations omitted), citing Harrington, 131 S. Ct. at 788.

13

To establish prejudice, the petitioner must establish

14

that there is “a reasonable probability that, but for counsel’s

15

unprofessional errors, the result of the proceeding would have

16

been different.”

17

2068.

18

an assertion his counsel’s performance was deficient because

19

counsel failed to raise a particular argument, the petitioner

20

must establish the argument was likely to be successful, thereby

21

establishing that he was prejudiced by his counsel’s omission.

22

See Tanner v. McDaniel, 493 F.3d 1135, 1144 (9th Cir. 2007);

23

Weaver

24

Accordingly,

25

prejudicial when counsel “fails” to raise an argument that

26

counsel reasonably believes would be futile.

27

Ct. at 741; Harrington, 131 S. Ct. at 788.

5
6
7
8
9

28

Strickland, 466 U.S. at 694, 104 S. Ct. at

See also, e.g., Cheney, 614 F.3d at 994.

v.

Palmateer,
counsel’s

455

F.3d

958,

performance

-17-

970
is

To succeed on

(9th
not

Cir.

2006).

deficient

nor

See Premo, 131 S.

1

Additionally, it is Petitioner’s burden to establish

2

both that his counsel’s performance was deficient and that he

3

was prejudiced thereby.

4

15, 16-17, 130 S. Ct. 383, 384-85 (2009). “It is not enough for

5

the defendant to show that the errors had some conceivable

6

effect on the outcome of the proceeding.”

7

at 693, 104 S. Ct. at 2067.

8

is never an easy task.” Padilla v. Kentucky, 555 U.S. 356, 371-

9

72, 130 S. Ct. 1473, 1485 (2010), quoted in Harrington, 131 S.

10

See, e.g., Wong v. Belmontes, 558 U.S.

Strickland, 466 U.S.

“Surmounting Strickland’s high bar

Ct. at 788.

11

In rejecting Petitioner’s ineffective assistance of

12

counsel claim with regard to counsel’s “failure” to file a

13

motion to suppress, the state trial court concluded:

14
15
16
17
18
19
20
21
22
23
24
25
26

Petitioner
claims
his
counsel
was
ineffective because he failed to file a
Motion to Suppress. The State’s position is
that the Petition[er] did not have “standing”
to file a Motion to Suppress, therefore, his
attorney was not “ineffective.”
Petitioner admitted to the investigating
officers that he stole the items in question
from the victim’s storage locker.
His
defense at trial was that he was innocent of
the burglary and theft charges; that his
girlfriend was guilty; and that he had lied
to the police in order to protect his
girlfriend.
In his Reply Memorandum, Petitioner argues
that, had the Motion to Suppress been filed,
it would not have been necessary to have his
girlfriend testify at trial in support of his
version of the truth. Further, that because
all of the property found in the motel room
belonged to him, he clearly had standing to
file the Motion to Suppress.
Under these interesting circumstances it is
extremely difficult for this Court to find a
material fact in support of Petitioner’s
claim of ineffective assistance of counsel.

27
28

-18-

1

Doc. 1, Exh. J.

2

Petitioner’s counsel’s decision not to file a motion to

3

suppress can be considered a reasonable strategic decision not

4

to press a futile motion and, accordingly, neither deficient

5

performance

6

Petitioner’s claim that a motion to suppress would have been

7

successful is belied by the state court’s rejection of the claim

8

based on application of the Strickland standard, i.e., the state

9

court impliedly concluded a motion to suppress would have been

10

nor

a

prejudicial

act

pursuant

to

Strickland.

denied by the trial court.

11

Because counsel’s performance is not deficient nor

12

prejudicial if counsel fails to raise a meritless argument,

13

Petitioner

14

performance nor prejudice.

15

decision denying relief on this claim was not clearly contrary

16

to nor an unreasonable application of federal law and this claim

17

should be denied on the merits.

has

not

met

his

burden

of

showing

deficient

Accordingly, the state court’s

18

5. Petitioner contends he was denied his right to the

19

effective assistance of counsel because his counsel did not

20

challenge the state’s “failure” to prove the fair-market value

21

of the victim’s stolen property.

22

Petitioner

argues

that

his

attorney’s

failure

to

23

require the state to inventory the stolen property deprived

24

Petitioner of the opportunity to show that the fair-market value

25

of the stolen property fell below $3,000.00, which would have

26

reduced the felony classification from the Class 3 felony of

27

theft to a lesser crime.

28

-19-

1

The

state

trial

court

rejected

this

claim

when

2

presented in Petitioner’s Rule 32 action without explaining its

3

decision in regard to this specific assignment of error by

4

counsel.

5

the crime and then recanted his confession and then implicated

6

his

7

interesting circumstances it is extremely difficult for this

8

Court to find a material fact in support of Petitioner’s claim

9

of ineffective assistance of counsel.”

After noting that Petitioner had first confessed to

girlfriend,

the

state

court

concluded:

“Under

these

10

The Court concludes there was no reasonable probability

11

Petitioner’s counsel could have persuaded a jury that the value

12

of “thousands” of stolen sports cards and hundreds of music

13

records was less than $3,000.00. Petitioner has not shown that

14

his counsel’s alleged “failure” to establish the value of more

15

than 3,000 pieces of evidence to was not a reasonable strategic

16

decision.

17

counsel’s alleged deficient performance in this regard was

18

prejudicial.

19

this decision by counsel was not an unreasonable application of

20

federal law.

21

raise a losing argument was not deficient and

22

not prejudiced as a result of counsel’s decision.

23
24
25

Nor has Petitioner met his burden of showing how

The state court’s application of Strickland to

Accordingly, counsel’s performance in failing to
Petitioner was

6. Petitioner contends his counsel’s performance at
sentencing was ineffective.
Petitioner

contends

that

he

received

ineffective

26

assistance of counsel because counsel failed to investigate and

27

present at the sentencing hearing the mitigating evidence of

28

-20-

1

Petitioner’s history of mental illness and substance abuse,

2

suicide attempts, and psychiatric issues and hospitalization.

3

Petitioner argues that his counsel neither investigated these

4

issues nor determined that an investigation was not necessary.

5

Petitioner asserts there is a “reasonable probability that the

6

result of the sentencing proceeding would have been different,

7

and could have resulted in a lesser sentence” had counsel

8

adequately investigated these issues.

9

The state court’s decision denying this claim was not

10

contrary to nor an unreasonable application of Strickland.

11

Petitioner has not established that any alleged “failure” was

12

unreasonably deficient performance or prejudicial.

13

made the sentencing court aware of mitigating factors and

14

Petitioner’s friend wrote a letter on his behalf and spoke at

15

his sentencing regarding Petitioner’s proficiency in the law,

16

the absence of any drug-abuse crimes, violence, or sex-related

17

crimes, and what they opined was the futility of an long

18

sentence.

19

hearing.

20

were property-related and not violent offenses.

Petitioner

Petitioner spoke for himself at the sentencing
Petitioner’s attorney emphasized that the offenses

21

As noted by Respondents, Petitioner did not discuss any

22

mental-health history in his letter to the trial court, nor did

23

he discuss the issue during his allocution in the sentencing

24

court.

25

ill, he did not submit any mental-health records in his state

26

action for post-conviction relief.

Although Petitioner now asserts he is and was mentally

27
28

-21-

1

Based

on

the

record

before

the

state

court,

its

2

decision that Petitioner was not denied the effective assistance

3

of

4

contrary to nor an unreasonable application of federal law.

counsel

in

his

sentencing

proceedings

was

not

clearly

5

IV Conclusion

6

Petitioner procedurally defaulted one of his federal

7

habeas claims in the state courts by failing to raise the claim,

8

regarding the jury venire pool, in a procedurally correct

9

manner.

The state court’s denial of the claim was based on an

10

adequate and independent state law basis for declining to

11

consider the merits of the claim in this habeas proceeding.

12

state courts’ decisions denying the merits of Petitioner’s other

13

federal habeas claims were not clearly contrary to nor an

14

unreasonable

15

Petitioner is not entitled to habeas relief.

16

application

of

federal

law

and,

The

accordingly,

IT IS THEREFORE RECOMMENDED that Mr. Creamer’s Petition

17

for

18

prejudice.

Writ

of

Habeas

Corpus

be

denied

and

dismissed

with

19

This recommendation is not an order that is immediately

20

appealable to the Ninth Circuit Court of Appeals. Any notice of

21

appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate

22

Procedure, should not be filed until entry of the District

23

Court’s judgment.

24

Pursuant

to

Rule

72(b),

Federal

Rules

of

Civil

25

Procedure, the parties shall have fourteen (14) days from the

26

date of service of a copy of this recommendation within which to

27

file specific written objections with the Court. Thereafter, the

28

-22-

1

parties have fourteen (14) days within which to file a response

2

to the objections. Pursuant to Rule 7.2, Local Rules of Civil

3

Procedure for the United States District Court for the District

4

of Arizona, objections to the Report and Recommendation may not

5

exceed seventeen (17) pages in length.

6

Failure to timely file objections to any factual or

7

legal determinations of the Magistrate Judge will be considered

8

a waiver of a party’s right to de novo appellate consideration

9

of the issues.

See United States v. Reyna–Tapia, 328 F.3d 1114,

10

1121

11

objections

12

Magistrate Judge will constitute a waiver of a party’s right to

13

appellate review of the findings of fact and conclusions of law

14

in an order or judgment entered pursuant to the recommendation

15

of the Magistrate Judge.

(9th

Cir.
to

2003)

any

(en

factual

banc).
or

Failure

legal

to

timely

determinations

file

of

the

16

Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District

17

Court must “issue or deny a certificate of appealability when it

18

enters a final order adverse to the applicant.” The undersigned

19

recommends that, should the Report and Recommendation be adopted

20

and, should Petitioner seek a certificate of appealability, a

21

certificate of appealability should be denied because Petitioner

22

has

23

constitutional right as required by 28 U.S.C.A § 2253(c)(2).

24

not

made

a

substantial

showing

DATED this 3rd day of January, 2014.

25
26
27
28

of

-23-

the

denial

of

a