Martinez #166712 v. Arizona, State of et al

Filing 32

ORDER that the Motion for Evidentiary Hearing (Doc. 27 at 13) is denied. IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 26 ) is accepted as specified above; the objections of Petitioner (Doc. 27 ) are overruled as specified above; the Petition is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly. IT IS FINALLY ORDERED that, in the event Petitioner files a notice of appeal, a Certificate of Appealability is denied because the Petition is barre d by a plain procedural bar and jurists of reason would not find this Court's procedural decision debatable or wrong; further, Petitioner has failed to make a substantial showing of the denial of a constitutional right. Signed by Senior Judge James A Teilborg on 6/16/2016. (KMG)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Rafael Martinez, Petitioner, 11 12 ORDER v. 13 No. CV-14-01753-PHX-JAT State of Arizona, et al., 14 Respondents. 15 16 Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas 17 Corpus (Doc. 7) (“Petition”). The Magistrate Judge to whom this case was assigned 18 issued a Report and Recommendation (Doc. 26) (“R&R”), recommending that this Court 19 deny the Petition. Petitioner has filed objections to the R&R. (Doc. 27). Respondent has 20 filed a Response to Petitioner’s objections to the R&R, requesting this Court to overrule 21 Petitioner’s objections and adopt the R&R. (Doc. 31). 22 I. Review 23 A. Review of R&R 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 26 the district judge must review the magistrate judge’s findings and recommendations de 27 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 28 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 1 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes 2 that de novo review of factual and legal issues is required if objections are made, ‘but not 3 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 4 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 5 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 6 not required to conduct “any review at all . . . of any issue that is not the subject of an 7 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 8 U.S.C. ' 636(b)(1) (“the court shall make a de novo determination of those portions of 9 the [report and recommendation] to which objection is made.”). Thus, the Court will 10 review the portions of the R&R to which Petitioner objected de novo. 11 B. 12 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 13 incarcerated based on a state conviction. With respect to any claims that Petitioner 14 exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must 15 deny the Petition on those claims unless “a state court decision is contrary to, or involved 16 an unreasonable application of, clearly established Federal law”1 or was based on an 17 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 18 Further, this Court must presume the correctness of the state court’s factual findings 19 regarding a petitioner’s claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 20 936 (9th Cir. 1998). Additionally, “[a]n application for a writ of habeas corpus may be 21 denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies 22 available in the courts of the State.” 28 U.S.C. § 2254(b)(2). 23 II. Review of State Court Decisions Factual Background 24 At pages 1-4, the R&R recounts the factual and procedural background of this 25 case. Other than in the context of specific legal arguments discussed below, neither party 26 objects generally to this recounting; accordingly, the Court accepts and adopts it, with the 27 28 1 Further, in applying “Federal law” the state courts only need to act in accordance with Supreme Court case law. See Carey v. Musladin, 549 U.S. 70, 74 (2006). -2- 1 exception of the error in the R&R as to the date on which the Arizona Court of Appeals 2 affirmed Petitioner’s convictions and sentences on Petitioner’s direct appeal. (See R&R at 3 3). The R&R incorrectly states April 26, 2010. (Id.) The Court notes that the Arizona 4 Court of Appeals affirmed Petitioner’s convictions and sentences on August 26, 2010. 5 (Doc. 19-2, Ex. P, at 148). 6 III. 7 8 9 Petition The Petition in this case raises 12 claims (Doc. 7). The Court will address each claim in turn, and will follow the numbering system used by the R&R. Claim 1 10 In his first claim, Petitioner argues that “the trial court abused its discretion by 11 allowing [the] state to present evidence of Petitioner and co-defendant [communicating] 12 while in court”, thereby violating his due process rights. (Doc. 7 at 6). The R&R 13 concludes that because Petitioner has not “assert[ed] a federal claim,” and, accordingly, 14 has not exhausted state remedies, this first claim is procedurally defaulted. (Doc. 26 at 11, 15 31). Further, the R&R states that “Petitioner fails to establish that error, if any, had a 16 ‘substantial and injurious effect or influence in determining the jury’s verdict.’” (Id. at 17 12) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). As a result, the R&R 18 concludes that habeas relief is precluded as to this first claim because “Petitioner cannot 19 demonstrate cause, let alone prejudice, for his default.” (Doc. 26 at 12). 20 Though Petitioner asks the Court, in his objection, “to reconsider this claim not 21 procedurally defaulted and consider this claim for what it is,” this does not dissuade this 22 Court from agreeing with the findings and conclusions in the R&R. (Doc. 27 at 3). The 23 Court agrees with the R&R’s conclusion that Petitioner “did not fairly present a federal 24 claim,” to the state courts, nor demonstrate cause and prejudice to excuse his default. 25 (Doc. 26 at 11–12). Further, the Court accepts and adopts the R&R’s merits finding that 26 the admission of the evidence of Petitioner and his co-defendant communicating was not 27 error. (Id. at 12). Accordingly, the Petitioner’s objections are overruled, the R&R is 28 accepted and adopted on Claim 1, and relief is denied on this claim. -3- 1 Claim 2 2 The Petitioner’s second claim encompasses five separate sub-claims of ineffective 3 assistance of counsel. (Doc. 7 at 7). Petitioner contends that ineffective assistance of 4 counsel has resulted in the violation of his Sixth and Fourteenth amendment rights. (Id.) 5 Petitioner also alleges that, should these grounds be procedurally defaulted, this 6 ineffective assistance of counsel should excuse the default. (Doc. 24 at 17–18). 7 At pages 13–14, the R&R states the governing legal standard for evaluating 8 ineffective assistance of counsel claims established by the Supreme Court in Strickland v. 9 Washington, 466 U.S. 668 (1984). Neither party objects to the R&R’s statement of the 10 legal standard. Accordingly, the Court accepts and adopts it as the governing legal 11 standard for evaluating the Petitioner’s ineffective assistance of counsel claims. Further, 12 the Magistrate Judge considered each of the Petitioner’s ineffective assistance of counsel 13 claims on the merits in the R&R. (Doc. 26 at 13). Accordingly, this Court will also 14 examine the ineffective assistance of counsel claims on the merits. 15 Failure to Examine Clothing for DNA Evidence 16 In his first sub-claim, Petitioner argues that his trial counsel was ineffective for 17 failing to examine his clothing for DNA evidence. (Doc. 7 at 7). The R&R concludes 18 that Petitioner’s claim fails, as “Petitioner presents no evidence to establish this claim is 19 true,” nor has Petitioner set forth any “evidence to establish that DNA testing, if 20 conclusive, would have been more or less likely to inculpate or exculpate the Petitioner.” 21 (R&R at 14). Further, the R&R concludes that “Petitioner’s speculation regarding the 22 potential results of further DNA testing is insufficient to establish [that Petitioner 23 suffered] prejudice” as a result of his trial counsel’s deficient performance. (Id. at 14– 24 15). Accordingly, the R&R ascertains that Petitioner is not entitled to habeas relief on 25 this claim. (Id.) 26 In his objection, Petitioner argues that though “he cannot show which way the 27 DNA test will lead,” if the Court would “order a DNA test on the clothing . . . all can be 28 put to rest.” (Doc. 27 at 3). Notwithstanding his objection, Petitioner still fails to support -4- 1 his claim, as he has not produced any evidence indicating his claim is true or that trial 2 counsel’s failure to examine his clothing for DNA evidence “prejudiced [his] defense.” 3 Strickland v. Washington, 466 U.S. 668, 687 (1984). Further, the Court accepts and 4 adopts the R&R’s findings on the merits as to this sub-claim. As a result, this objection 5 is overruled. Accordingly, the R&R is accepted as set forth above, and relief is denied on 6 this claim. 7 Failure to Object to Reference of a Prior Trial 8 In his second sub-claim, Petitioner argues that his trial counsel failed to “provide 9 [him] with the presumption of innocence when [a] witness testified Petitioner had [a] 10 previous trial” and counsel thereafter did not request a mistrial. (Doc. 7 at 7). The R&R 11 concludes that “Petitioner cannot demonstrate any due process violation as a result of 12 counsel’s failure to request a mistrial, which would almost certainly have been denied 13 based upon a sole reference to a prior trial.” (Doc. 26 at 16). Accordingly, Petitioner is 14 not entitled to habeas relief on this claim, as “Petitioner’s claim fails because he cannot 15 establish there was prejudice.” (Id. at 15–16). 16 Petitioner objects and argues that the “reference of . . . a previous trial can [a]ffect 17 the integrity of a trial.” (Doc. 27 at 4). 18 speculative claim with evidence. Accordingly, for the reasons stated in the R&R (at 15– 19 16), this objection is overruled. The R&R is accepted and adopted as to this second sub- 20 claim, and habeas relief is denied on this claim. 21 However, Petitioner fails to support this Improper Comments During Closing Argument 22 In his third sub-claim, Petitioner alleges that his trial counsel was ineffective for 23 failing “to object to the prosecution’s improper comments that some of the loci do match 24 that of the defendant” during closing argument. (Doc. 24 at 16). The R&R concludes that 25 counsel’s failure to object to this statement was not ineffective. (Doc. 26 at 16). The 26 R&R further concludes that this statement by the Prosecutor was not improper as it was a 27 response to an argument by Petitioner, and because “counsel reminded the jurors that the 28 results were inconclusive.” (Id.). Accordingly, the R&R ascertains that Petitioner is not -5- 1 entitled to habeas relief on this claim. (Id.). 2 Petitioner maintains the allegations in this third sub-claim in his objection, again 3 arguing that the Prosecutor’s comments are improper. (Doc. 27 at 4). Petitioner further 4 objects on the grounds that the jury members are not experts in examining DNA. (Id.). 5 This objection is overruled, as fact-finding is the essential function of the jury. See 6 Apprendi v. New Jersey, 530 U.S. 466, 476–490 (2000). Further, the Court accepts and 7 adopts the R&R’s findings on the merits as to this sub-claim. Thus, the R&R is accepted 8 as specified above, and relief is denied on this claim. 9 Failure to Interview Witnesses 10 In his fourth sub-claim, Petitioner argues that trial counsel’s failure to interview 11 additional potential witnesses violated his “Sixth Amendment right to effective assistance 12 of counsel,” as these witnesses may have information about “what the suspects were 13 wearing, . . . what race they were,” and whether more than one person was running from 14 the scene of the crime. (Doc. 24 at 16–17). The R&R concludes that Petitioner’s claim 15 fails as he has not proven that counsel’s “failure to identify and interview additional 16 witnesses” establishes deficient performance under the standard established in Strickland 17 v. Washington, 466 U.S. 668 at 687. (R&R at 17). This Court agrees. 18 Objecting, Petitioner argues that counsel should have further investigated two 19 witnesses’ whose descriptions of the event (Doc. 27 at Ex. B) do not describe Petitioner. 20 (Doc. 27 at 5). The Court has reviewed the R&R’s conclusions on this theory and agrees 21 that Petitioner has failed to prove deficient performance by counsel, or prejudice, as to 22 this sub-claim. The Court further agrees with Respondent’s argument that “Petitioner 23 cannot show deficient performance because his counsel could have reasonably decided 24 not to interview or call these two witnesses as a matter of trial strategy.” (Doc. 31 at 5). 25 Accordingly, this objection is overruled, the R&R is accepted and adopted, and relief is 26 denied on this claim. 27 28 Ineffective Assistance of Appellate and PCR Counsel In his fifth and final sub-claim, Petitioner asserts that, by failing to raise the -6- 1 arguments included in his Petition, both appellate and post-conviction counsel were 2 ineffective. (Doc. 7 at 7). As the arguments included in his Petition were without merit, 3 the R&R concludes that “appellate and post-conviction counsel were not ineffective for 4 failing to raise them.” (R&R at 17). This Court agrees. In his objection, Petitioner fails 5 to produce any evidence supporting this allegation. (See Doc. 27 at 6). As a result, the 6 Court overrules this objection. The R&R is accepted and adopted as to this fifth sub- 7 claim, and relief is denied on this claim. 8 Claim 3 9 In his Third Claim, Petitioner alleges that by “knowingly presenting false 10 testimony” and by contradicting the State’s DNA expert, the Prosecutor committed 11 misconduct. (Doc. 7 at 8). As a result, Petitioner argues that the Prosecutor’s conduct 12 violated Petitioner’s Fourteenth Amendment right to due process of law. (Id.) This Third 13 Claim encompasses three separate sub-claims. 14 False Testimony Claim regarding Petitioner’s Residence 15 In the first sub-claim, Petitioner asserts that the Prosecutor knowingly elicited 16 false testimony from Officer Gutierrez that Petitioner lived in South Phoenix instead of 17 “Maryvale.” (Doc. 24 at 20–21). The R&R concludes that “Petitioner does not dispute 18 that the jurors knew Petitioner’s actual address, nor does he dispute that the officer [later] 19 agreed the address was north of ‘South Phoenix.’” (R&R at 18–19). Accordingly, the 20 R&R further concludes that Petitioner’s claim fails, as Petitioner has failed to show that 21 this testimony “had an injurious effect on the jury.” (R&R at 19). This Court agrees. 22 Petitioner has not objected to the R&R as to this specific sub-claim of his Third Claim. 23 As a result, the R&R is accepted and adopted as specified above, and habeas corpus relief 24 is denied as to this sub-claim. 25 False Testimony Claim regarding the Possession of $8.95 26 In the second sub-claim, Petitioner asserts that the Prosecutor knowingly elicited 27 false testimony from Detective Ybarra that Petitioner did not “have any money at the 28 time of his arrest.” (Doc. 24 at 23). Petitioner alleges that this evidence would have -7- 1 corroborated his defense that he had money for a bus ticket. (Doc. 24 at 26). The R&R 2 concludes that Detective Ybarra’s statement was, at most, inconsistent, as she agreed that 3 the booking records indicate Petitioner had this money when accepted at the country jail, 4 but “also stated that she did not believe the $8.95 was Petitioner’s and instead testified 5 that $8.95 was the amount on Perez’s person.” (R&R at 20). The R&R further concludes 6 that “Petitioner has not established that this testimony was false,” or that the testimony 7 had a substantial and injurious effect on the jury’s decision. (Id.) 8 In his objection to this claim, Petitioner requests an evidentiary hearing to examine 9 the “Good Year arrest report to show cause that the arrest and booking sheet is not Perez 10 and Martinez’s as Ms. Ybarra stated.” (Doc. 27 at 6). This objection is overruled because 11 the arrest report that Detective Ybarra examined during trial at the behest of the 12 Prosecutor does indicate Petitioner had $8.95 when accepted at the jail. (R&R at 19) (See 13 also Doc. 24-1, Ex. B, at 23). Further, Detective Ybarra’s testimony was not false, as she 14 agreed that the arrest report indicates Petitioner had $8.95 when booked at the county jail. 15 (Id.). Accordingly, the R&R is accepted and adopted, and habeas relief is denied as to 16 this sub-claim. 17 Contradicting the State’s DNA Witness 18 In the third sub-claim, Petitioner argues that the Prosecutor contradicted the DNA 19 expert when the Prosecutor stated that “some of the exhibits from the lab do match up 20 with the defendant.” (Doc. 24 at 29). The R&R concludes that this is the same argument 21 rejected above (in Claim 2, sub-claim 3). (R&R at 20). Petitioner concedes that this issue 22 was raised in Claim 2. (Doc. 27 at 7). Accordingly, the R&R is accepted and adopted, 23 and habeas relief is denied as to this sub-claim. 24 Claim 4 25 In his fourth claim, Petitioner asserts that the State violated his Fifth Amendment 26 guarantee against double jeopardy by convicting him of both Armed Robbery and Theft 27 of Means of Transportation. (Doc. 24 at 32). Though Petitioner alleges he presented this 28 issue in a direct appeal, the R&R notes that his claim in the Arizona Court of Appeals -8- 1 was instead based upon a violation of A.R.S. § 13–116. (R&R at 21). 2 concludes that “to the extent Petitioner argues the sentence violated Arizona law, that 3 argument is not cognizable on habeas review.” (Id.). Further, Petitioner has failed to 4 show any cause to excuse the procedural default of any potential federal claim on this 5 issue. (Id.). Finally, the R&R concludes that this fourth claim is meritless, as the Arizona 6 Court of Appeals found that no double jeopardy violation occurred; the State may punish 7 separate offenses included within the same transaction, and here “the theft of cash from 8 the victim was separate from the theft of the vehicle.” (Id. at 22). The R&R 9 Petitioner objects that “[d]ouble jeopardy bars subsequent prosecutions of a single 10 act.” (Doc. 27 at 7). However, the R&R assumed a federal claim was exhausted for 11 purposes of determining whether this claim had merit, as indicated by its analysis of 12 Petitioner’s argument that a Theft of Means of Transportation is a “lesser-included 13 offense” of an Armed Robbery. (Doc. 26 at 20) (quoting Doc. 24 at 32). As a result, this 14 objection does not change the outcome of this case and is overruled. Accordingly, the 15 R&R is accepted and adopted as to Claim 4, and relief is denied on this claim. 16 Claim 5 17 Next, Petitioner claims that the trial court’s failure to apply a clear and convincing 18 evidence standard when determining whether Petitioner’s pretrial identification was 19 unduly prejudicial violated his rights to due process of law. (Doc. 24 at 32–33). The 20 R&R concludes that the “Arizona state court’s fact finding was not unreasonable” as the 21 pretrial identification by D.M. was neither unreliable nor impermissibly suggestive. 22 (R&R at 23-24). The R&R further concludes that this claim fails because the Arizona 23 Court of Appeals’ finding that no prejudice appears affirmatively in the record “was not 24 based on an unreasonable application of clearly established federal law or an 25 unreasonable determination of the facts.” (Id. at 25). 26 Petitioner objects and alleges that he has extensively argued each of the five 27 factors of Biggers.2 (Doc. 27 at 9). However, this objection is overruled, as the R&R 28 2 Neil v. Biggers, 409 U.S. 188, 197 (1972). -9- 1 extensively reviewed the Arizona state court’s Biggers finding under a totality of the 2 circumstances test, determining it was not unreasonable. (R&R at 22–25). Accordingly, 3 the R&R is accepted and adopted as to this claim, and relief is denied. 4 Claim 6 5 In his sixth claim, Petitioner argues that the trial court erred in denying Petitioner a 6 Batson3 challenge after the State struck a Hispanic juror, resulting in the violation of his 7 Fourteenth Amendment right to due process. (Doc. 24 at 38–39). Though “Petitioner 8 made a prima facie showing that the strike was based upon [the juror’s] race,” the 9 Prosecutor indicated that the juror was dismissed based upon his lack of a high school 10 degree (R&R at 26–27). 11 discriminatory reason for striking a juror.” (Id. at 27). The R&R further concludes that 12 Petitioner’s failure to demonstrate that the Prosecutor was purposefully discriminatory 13 towards this Hispanic juror indicates that “the [Arizona] court of appeal’s rejection of 14 Petitioner’s Batson claim was neither contrary to, nor an unreasonable application of, 15 clearly established federal law.” (Id.). Accordingly, this claim fails. (Id.). The R&R concludes that a “lack of education is a non- 16 In his objection, Petitioner repeats his contention that the Prosecutor’s strike was 17 discriminatory, contending that the juror may have had a GED instead of a high school 18 degree by drawing a parallel to his own lack of a high school degree. (Doc. 27 at 10). 19 The Court overrules this objection, as the R&R considered this counter-argument in its 20 determination that striking a juror because of a lack of education is race-neutral. (R&R at 21 27); see also United States v. Martin, 7 F.3d 679, 686–87 (7th Cir. 1993). Accordingly, 22 the R&R is accepted and adopted on this sixth claim, and habeas relief is denied on this 23 claim. 24 Claim 7 25 Petitioner next argues that he was unconstitutionally detained as the “investigatory 26 stop was not based on reasonable suspicion.” (Doc. 7 at 12). As a result, Petitioner 27 claims his Fourth Amendment rights were violated (Doc. 24 at 43). The R&R concludes 28 3 Batson v. Kentucky, 476 U.S. 79 (1986). - 10 - 1 that this claim is not cognizable, as Petitioner had the opportunity to litigate this Fourth 2 Amendment issue in both the Arizona trial court and Arizona Court of Appeals. (R&R at 3 27–28). Accordingly, this claim fails, as “federal habeas corpus relief may not lie for a 4 claim that evidence recovered through an illegal search or seizure was introduced at trial” 5 where that claim has been fully and fairly litigated, as here. (Id.). 6 The Petitioner has not raised any objection regarding this seventh claim (See Doc. 7 27). As a result, the R&R is accepted and adopted on Claim 7, and habeas relief is 8 denied as to this claim. 9 Claim 8 10 In his eighth claim in his Petition, Petitioner alleges that the imposition of the 11 consecutive sentence for the Theft of Means of Transportation conviction violates his due 12 process rights. (Doc. 7 at 13). Petitioner then asserts a violation of the Sixth Amendment 13 Confrontation Clause in his Reply, arguing that because the theft victim did not testify at 14 trial and because “the jury never decided” the theft charge beyond a reasonable doubt, 15 Petitioner did not have an opportunity to confront this witness. (Doc. 24 at 45–46) (See 16 U.S. CONST. amend. VI). First, the R&R concludes that the consecutive sentences 17 claim raised in the Petition is the same as Petitioner’s fourth claim, and is procedurally 18 defaulted. (R&R at 29). The Court accepts and adopts the R&R as to this theory. 19 Second, the R&R concludes that because the confrontation claim was not raised in his 20 Petition, this claim is waived, as “a reply ‘is not the proper pleading to raise additional 21 grounds for relief’ in a habeas proceeding.” (Id.) (quoting Cacoperdo v. Demosthenes, 37 22 F.3d 504, 507 (1994)). Alternatively, on the merits, the R&R concludes that Petitioner’s 23 Confrontation Clause claim also fails as “the testimony of the victim was sufficient” to 24 prove the Theft of Means of Transportation violation and “the victim was subject to 25 cross-examination during trial.” (R&R at 29). This Court agrees. 26 Petitioner’s objection asserts, as in his Reply (Doc. 24 at 45–48), that his Sixth and 27 Fourteenth Amendment rights were violated because the Theft of Means of 28 Transportation conviction was based on the state trial court’s finding that there was “a - 11 - 1 separate victim in this case, [] a separate owner of the vehicle” whom Petitioner claims he 2 did not have the opportunity to confront. (Doc. 27 at 10–11). However, the R&R found, 3 on the merits, that the victim, Deane Maki, testified in the state trial court that the co- 4 defendant pointed a handgun at him and told him to “[g]et out of the cab.” (Doc. 26 at 29) 5 (quoting Doc. 19-5, Ex. MMM, at 178–79). This same victim also testified that he saw 6 the Petitioner “slide into the driver’s seat” after the co-defendant told the victim to get out 7 of the taxicab. (Id. at 180). The Court accepts and adopts the R&R’s findings on the 8 merits as to this sub-claim. 9 Petitioner’s claim is also meritless, as the transcript of the state trial court 10 proceedings indicates that Petitioner’s counsel, Mr. Winchell, did, in fact, have the 11 opportunity to cross-examine this victim. (See Doc. 19-5, Ex. MMM, at 36, 201–229). 12 Further, the transcript of the state trial court proceedings illustrates that Petitioner’s 13 counsel had the opportunity to cross-examine each additional witness called by the 14 Prosecutor. (See Doc. 19-6, Ex. NNN, at 20, 46, 67, 102, 124; Ex. OOO, at 152, 177, 15 195, 215, 227) (Doc. 19-7, Ex. PPP at 5; Ex. QQQ at 137). Accordingly, Petitioner’s 16 objection that he did not have the opportunity to confront the victim is without merit. 17 This Court also notes that the witnesses called by the Prosecutor, with the exception of 18 the victim, Deane Maki, are not civilians, but, rather, are testifying in their capacity as 19 law enforcement and corrections personnel. 20 Additionally, this Court examined the jury instructions and notes that the trial 21 court instructed the jury that the State has the burden of proving the Petitioner guilty 22 beyond a reasonable doubt. (Doc. 19-7 at 49–50). As the Petitioner has not presented any 23 evidence that the jury never decided the theft charge beyond a reasonable doubt, 24 Petitioner’s objection is overruled. 25 thoroughly, this Court also finds that Petitioner’s objection that the Theft of Means of 26 Transportation conviction was based on a separate victim or separate owner of the 27 vehicle has no merit as Petitioner has presented no evidence supporting these allegations 28 nor does the record indicate these allegations are true. After examining the state trial court record - 12 - Accordingly, Petitioner’s 1 objections are overruled. The R&R is accepted and adopted on Claim 8, and habeas 2 relief is denied as to this claim. 3 Claim 9 4 In his Ninth Claim, Petitioner argues that “improper consideration in determining 5 sentencing” resulted in the violation of his Fourteenth Amendment right to due process. 6 (Doc. 7 at 14). 7 inaccurate in its criminal history as “it double[d] the Defendant’s guilty plea as though he 8 pleaded guilty to two armed robberies back in ’02,” and because Petitioner “was never 9 convicted for two separate victims” in the present case. (Doc. 24 at 48). The R&R 10 concludes that the imposition of the aggravated sentence neither violates Petitioner’s due 11 process rights nor is unwarranted as it was imposed based upon the findings that 12 “Petitioner was on parole at the time of the offense, . . . Petitioner had ‘a prior felony 13 conviction’, [there was] threat of serious physical injury, the presence of an accomplice, 14 and the commission of the offense for pecuniary gain.” (R&R at 29–30). The R&R 15 further concludes that the “record does not support” Petitioner’s conclusory allegation 16 “that the court double counted his prior felony conviction.” (Id. at 30). Accordingly, this 17 Ninth Claim fails. (Id.) Petitioner expands in his Reply that the presentence report “was 18 The Petitioner has not raised any objection regarding this Ninth claim (See Doc. 19 27). As this Court agrees with the R&R, the R&R is accepted and adopted on Claim 9. 20 Habeas relief is denied as to this claim. 21 Claim 10 22 In his Tenth Claim, Petitioner alleges that the state of Arizona “retaliated against 23 Petitioner for exercising [his] right to trial” in violation of his Fourteenth Amendment 24 due process rights. (Doc. 7 at 15). Petitioner elaborates in his Reply, stating that “the fact 25 that the Petitioner went through two separate trials which resulted in hung jury mistrials 26 created the inference that the prosecution wanted to punish the Petitioner by increasing 27 the Petitioner’s sentence. . . .” (Doc. 24 at 50). The R&R concludes that Petitioner’s 28 allegation of “an inference of vindictiveness based upon errors and multiple trials” is - 13 - 1 meritless as it is not supported by the record. (R&R at 30). Accordingly, the R&R 2 concludes that habeas corpus relief cannot be granted as to this disparity in sentencing 3 claim as Petitioner does not present any grounds implicating the federal Constitution. 4 (Id.). This Court agrees. 5 Though Petitioner’s objection again asserts that his continuous trials were 6 retaliatory (Doc. 27 at 11–12), this objection is overruled, as Petitioner fails to provide 7 any evidence to support this allegation of vindictiveness. Accordingly, this Court accepts 8 and adopts the R&R as to this Tenth Claim, and habeas relief is denied as to this claim. 9 Claim 11 10 Petitioner next claims a due process violation as a result of the trial court’s refusal 11 to permit “Petitioner to present to the jury the newly discovered evidence” that he 12 possessed $8.95 at the time of the offense; Petitioner alleges that this evidence would 13 have corroborated his defense that the money was for a bus ticket. (Doc. 24 at 51–52). 14 The R&R concludes that this new evidence, the receipt from the jail, is “at best 15 cumulative”, and “the jurors were aware of at least one jail record.” (R&R at 31). The 16 R&R further concludes that Petitioner’s claim is meritless as he cannot prove that the trial 17 court’s error had a ‘substantial and injurious effect or influence in determining the jury’s 18 verdict.’” (Id.) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Accordingly, 19 the R&R recommends that habeas relief be denied as to this claim. (Id. at 31). 20 Petitioner’s objection again asserts that the witness’s testimony regarding the 21 $8.95 was “false.” (Doc. 27 at 12). This objection is overruled, as Petitioner fails to 22 establish that this testimony was injurious or prejudicial. Accordingly, the R&R is 23 accepted and adopted on Claim 11, and habeas relief is denied as to this claim. 24 Claim 12 25 In his Twelfth and final claim, Petitioner alleges that he was denied the 26 presumption of innocence “after the State’s leading witness stated that [he] had a 27 previous trial. . . .” (Doc. 24 at 54). The R&R concludes that this claim is identical to the 28 claim rejected above (here, at Ground 2, sub-claim 2 regarding failure to object to - 14 - 1 reference to a prior trial). (R&R at 31). Petitioner concedes in his Objections that this 2 Claim is discussed in Claim 2. (Doc. 27 at 12). This Court agrees with the R&R. 3 Accordingly, the R&R is accepted and adopted on Claim 12 and habeas corpus relief is 4 denied as to this claim. 5 IV. Motion for Evidentiary Hearing 6 Though Petitioner has not filed a formal Motion for Evidentiary Hearing, he 7 requests in his Petition that the Court “grant a new trial or re-sentencing.” (Doc. 7 at 19). 8 The R&R concludes that no evidentiary hearing is needed as “[t]he record is sufficiently 9 developed.” (R&R at 31). This Court agrees. 10 In his objection, Petitioner asserts that “an evidentiary hearing should be granted.” 11 (Doc. 27 at 13). This Court overrules this objection, as Petitioner’s Petition (Doc. 7) and 12 Objections (Doc. 27) have failed to provide any indication that the record is insufficient. 13 (R&R at 31). In his objection, Petitioner also asks the Court to reevaluate the evidence, 14 and has attached Exhibits. (Doc. 27 at 13). Notably, in regard to the potential witnesses 15 identified by Petitioner in Exhibit B to his Objections (discussed above in Claim 2, sub- 16 claim 4), the Court notes that Petitioner may not use an evidentiary hearing merely to 17 determine if these two witnesses have potentially favorable testimony. See United States 18 v. Fuentes, 2009 WL 4730733, *5 (D. Ariz. Dec. 7, 2009) aff’d United States v. Fuentes, 19 457 Fed.Appx 687 (9th Cir. 2011) (“Petitioner is not entitled to an evidentiary hearing as 20 a fishing expedition to see if any of these individuals might have helpful testimony.”). 21 Accordingly, the Petitioner’s request for an evidentiary hearing is denied. 22 V. Conclusion 23 Based on the foregoing, 24 IT IS ORDERED that the Motion for Evidentiary Hearing (Doc. 27 at 13) is 25 denied. 26 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 26) is 27 accepted as specified above; the objections of Petitioner (Doc. 27) are overruled as 28 specified above; the Petition is denied, with prejudice, and the Clerk of the Court shall - 15 - 1 enter judgment accordingly. 2 IT IS FINALLY ORDERED that, in the event Petitioner files a notice of appeal, 3 a Certificate of Appealability is denied because the Petition is barred by a plain 4 procedural bar and jurists of reason would not find this Court’s procedural decision 5 debatable or wrong; further, Petitioner has failed to make a substantial showing of the 6 denial of a constitutional right. 7 Dated this 16th day of June, 2016. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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