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)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Matthew Ronald Creamer, 9 Petitioner, 10 11 ) ) ) ) ) ) ) ) ) ) ) ) v. Charles L. Ryan, Arizona Attorney General, 12 Respondents. 13 _______________________________ CIV 12-01781 PHX SRB (MEA) REPORT AND RECOMMENDATION 14 15 TO THE HONORABLE SUSAN R. BOLTON: 16 Petitioner, proceeding pro se, filed a petition for 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254 on or about 18 August 16, 2012. 19 Writ of Habeas Corpus (“Answer”) (Doc. 12) on February 25, 2013. 20 In 21 Petitioner until sixty days after the date the District Court 22 decided Petitioner’s motion for emergency injunctive relief to 23 file a reply to the answer to his petition. 24 decision on the motion for injunctive relief was issued October 25 29, 2013. 26 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. 4 See Answer, Exh. A. 5 four historical felony convictions, i.e., a conviction for 6 “criminal simulation” and three convictions for theft. 7 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. 14 the trial court discussed the motion with Petitioner and his 15 attorney, and then denied the motion. Id., Exhs. F & G. 16 November 4, 2004, at the conclusion of a one-day trial, a jury 17 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 19 December 14, 2004. 20 that Petitioner had four historical prior felony convictions. 21 The trial court declined to follow the state’s recommendation 22 that it impose an aggravated term of fifteen years imprisonment 23 on each conviction. 24 Petitioner to concurrent, slightly aggravated terms of twelve 25 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 27 28 The state court found -2- Id., 1 Petitioner took a timely direct appeal of his 2 convictions and sentences. 3 counsel 4 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 8 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 17 issued an order addressing Petitioner’s substitution-of-counsel 18 claim, which it had previously construed in his direct appeal as 19 an ineffective assistance of counsel claim; the appellate court 20 denied relief on the claim. 21 Petitioner sought review of this decision by the Arizona Supreme 22 Court, which summarily denied review. 23 United States Supreme Court denied Petitioner’s petition for a 24 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, 26 Prior to the denial of certiorari, on July 3, 2007, 27 Petitioner initiated a state action for post-conviction relief 28 -3- 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 4 ineffective-assistance-of-counsel claims which correspond to his 5 fourth and fifth federal habeas claims. 6 Petitioner also filed an amendment to his Rule 32 pleading in 7 which he raised an ineffective assistance claim that corresponds 8 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. 11 decision issued August 22, 2011, the Arizona Court of Appeals 12 summarily denied a petition for review of this decision. 13 Exh. K & Exh. L. 14 On August 16, 2012, Doc. 1, Exh. J. Petitioner filed the In a Id., pending 15 federal habeas petition in this Court, raising six claims for 16 relief. 17 Respondents also allow that Petitioner’s claims for relief are 18 exhausted in the state courts. 19 II Standard of review 20 The Court may not grant a writ of habeas corpus to a 21 state prisoner on a claim adjudicated on the merits in state 22 court proceedings unless the state court reached a decision 23 contrary to clearly established federal law, or the state court 24 decision was an unreasonable application of clearly established 25 federal law. 26 U.S. 70, 75, 127 S. Ct. 649, 653 (2006); Musladin v. Lamarque, 27 555 F.3d 834, 838 (9th Cir. 2009). 28 Respondents allow that the petition is timely filed. See 28 U.S.C. § 2254(d); Carey v. Musladin, 549 -4- “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.’” 6 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 10 is materially indistinguishable from a decision of the Supreme 11 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 14 (2004); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012), 15 cert. denied, 133 S. Ct. 2766 (2013). 16 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 22 1276, 1288 (9th Cir. 2010). 23 724, 737 (9th Cir. 2008); Bledsoe v. Bruce, 569 F.3d 1223, 1233 24 (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 28 -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 6 arguments or theories supported or ... could have supported, the 7 state court’s decision; and then it must ask where it is 8 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. 24 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). 3 4 5 6 7 8 9 10 11 12 13 14 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 28 -7- 15 16 17 18 19 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). 2 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 27 28 -10- 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?