Martinez #166712 v. Arizona, State of et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Rafael Martinez,
Petitioner,
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ORDER
v.
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No. CV-14-01753-PHX-JAT
State of Arizona, et al.,
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Respondents.
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Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas
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Corpus (Doc. 7) (“Petition”). The Magistrate Judge to whom this case was assigned
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issued a Report and Recommendation (Doc. 26) (“R&R”), recommending that this Court
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deny the Petition. Petitioner has filed objections to the R&R. (Doc. 27). Respondent has
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filed a Response to Petitioner’s objections to the R&R, requesting this Court to overrule
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Petitioner’s objections and adopt the R&R. (Doc. 31).
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I.
Review
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A.
Review of R&R
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This Court “may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that
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the district judge must review the magistrate judge’s findings and recommendations de
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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d
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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263
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F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes
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that de novo review of factual and legal issues is required if objections are made, ‘but not
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otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
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1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the
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[Magistrate Judge’s] recommendations to which the parties object.”). District courts are
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not required to conduct “any review at all . . . of any issue that is not the subject of an
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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28
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U.S.C. ' 636(b)(1) (“the court shall make a de novo determination of those portions of
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the [report and recommendation] to which objection is made.”). Thus, the Court will
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review the portions of the R&R to which Petitioner objected de novo.
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B.
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The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is
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incarcerated based on a state conviction. With respect to any claims that Petitioner
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exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must
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deny the Petition on those claims unless “a state court decision is contrary to, or involved
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an unreasonable application of, clearly established Federal law”1 or was based on an
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unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
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Further, this Court must presume the correctness of the state court’s factual findings
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regarding a petitioner’s claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,
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936 (9th Cir. 1998). Additionally, “[a]n application for a writ of habeas corpus may be
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denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
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available in the courts of the State.” 28 U.S.C. § 2254(b)(2).
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II.
Review of State Court Decisions
Factual Background
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At pages 1-4, the R&R recounts the factual and procedural background of this
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case. Other than in the context of specific legal arguments discussed below, neither party
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objects generally to this recounting; accordingly, the Court accepts and adopts it, with the
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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).
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exception of the error in the R&R as to the date on which the Arizona Court of Appeals
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affirmed Petitioner’s convictions and sentences on Petitioner’s direct appeal. (See R&R at
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3). The R&R incorrectly states April 26, 2010. (Id.) The Court notes that the Arizona
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Court of Appeals affirmed Petitioner’s convictions and sentences on August 26, 2010.
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(Doc. 19-2, Ex. P, at 148).
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III.
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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
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In his first claim, Petitioner argues that “the trial court abused its discretion by
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allowing [the] state to present evidence of Petitioner and co-defendant [communicating]
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while in court”, thereby violating his due process rights. (Doc. 7 at 6). The R&R
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concludes that because Petitioner has not “assert[ed] a federal claim,” and, accordingly,
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has not exhausted state remedies, this first claim is procedurally defaulted. (Doc. 26 at 11,
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31). Further, the R&R states that “Petitioner fails to establish that error, if any, had a
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‘substantial and injurious effect or influence in determining the jury’s verdict.’” (Id. at
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12) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). As a result, the R&R
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concludes that habeas relief is precluded as to this first claim because “Petitioner cannot
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demonstrate cause, let alone prejudice, for his default.” (Doc. 26 at 12).
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Though Petitioner asks the Court, in his objection, “to reconsider this claim not
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procedurally defaulted and consider this claim for what it is,” this does not dissuade this
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Court from agreeing with the findings and conclusions in the R&R. (Doc. 27 at 3). The
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Court agrees with the R&R’s conclusion that Petitioner “did not fairly present a federal
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claim,” to the state courts, nor demonstrate cause and prejudice to excuse his default.
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(Doc. 26 at 11–12). Further, the Court accepts and adopts the R&R’s merits finding that
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the admission of the evidence of Petitioner and his co-defendant communicating was not
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error. (Id. at 12). Accordingly, the Petitioner’s objections are overruled, the R&R is
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accepted and adopted on Claim 1, and relief is denied on this claim.
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Claim 2
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The Petitioner’s second claim encompasses five separate sub-claims of ineffective
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assistance of counsel. (Doc. 7 at 7). Petitioner contends that ineffective assistance of
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counsel has resulted in the violation of his Sixth and Fourteenth amendment rights. (Id.)
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Petitioner also alleges that, should these grounds be procedurally defaulted, this
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ineffective assistance of counsel should excuse the default. (Doc. 24 at 17–18).
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At pages 13–14, the R&R states the governing legal standard for evaluating
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ineffective assistance of counsel claims established by the Supreme Court in Strickland v.
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Washington, 466 U.S. 668 (1984). Neither party objects to the R&R’s statement of the
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legal standard. Accordingly, the Court accepts and adopts it as the governing legal
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standard for evaluating the Petitioner’s ineffective assistance of counsel claims. Further,
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the Magistrate Judge considered each of the Petitioner’s ineffective assistance of counsel
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claims on the merits in the R&R. (Doc. 26 at 13). Accordingly, this Court will also
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examine the ineffective assistance of counsel claims on the merits.
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Failure to Examine Clothing for DNA Evidence
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In his first sub-claim, Petitioner argues that his trial counsel was ineffective for
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failing to examine his clothing for DNA evidence. (Doc. 7 at 7). The R&R concludes
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that Petitioner’s claim fails, as “Petitioner presents no evidence to establish this claim is
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true,” nor has Petitioner set forth any “evidence to establish that DNA testing, if
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conclusive, would have been more or less likely to inculpate or exculpate the Petitioner.”
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(R&R at 14). Further, the R&R concludes that “Petitioner’s speculation regarding the
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potential results of further DNA testing is insufficient to establish [that Petitioner
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suffered] prejudice” as a result of his trial counsel’s deficient performance. (Id. at 14–
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15). Accordingly, the R&R ascertains that Petitioner is not entitled to habeas relief on
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this claim. (Id.)
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In his objection, Petitioner argues that though “he cannot show which way the
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DNA test will lead,” if the Court would “order a DNA test on the clothing . . . all can be
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put to rest.” (Doc. 27 at 3). Notwithstanding his objection, Petitioner still fails to support
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his claim, as he has not produced any evidence indicating his claim is true or that trial
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counsel’s failure to examine his clothing for DNA evidence “prejudiced [his] defense.”
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Strickland v. Washington, 466 U.S. 668, 687 (1984). Further, the Court accepts and
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adopts the R&R’s findings on the merits as to this sub-claim. As a result, this objection
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is overruled. Accordingly, the R&R is accepted as set forth above, and relief is denied on
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this claim.
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Failure to Object to Reference of a Prior Trial
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In his second sub-claim, Petitioner argues that his trial counsel failed to “provide
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[him] with the presumption of innocence when [a] witness testified Petitioner had [a]
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previous trial” and counsel thereafter did not request a mistrial. (Doc. 7 at 7). The R&R
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concludes that “Petitioner cannot demonstrate any due process violation as a result of
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counsel’s failure to request a mistrial, which would almost certainly have been denied
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based upon a sole reference to a prior trial.” (Doc. 26 at 16). Accordingly, Petitioner is
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not entitled to habeas relief on this claim, as “Petitioner’s claim fails because he cannot
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establish there was prejudice.” (Id. at 15–16).
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Petitioner objects and argues that the “reference of . . . a previous trial can [a]ffect
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the integrity of a trial.” (Doc. 27 at 4).
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speculative claim with evidence. Accordingly, for the reasons stated in the R&R (at 15–
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16), this objection is overruled. The R&R is accepted and adopted as to this second sub-
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claim, and habeas relief is denied on this claim.
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However, Petitioner fails to support this
Improper Comments During Closing Argument
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In his third sub-claim, Petitioner alleges that his trial counsel was ineffective for
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failing “to object to the prosecution’s improper comments that some of the loci do match
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that of the defendant” during closing argument. (Doc. 24 at 16). The R&R concludes that
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counsel’s failure to object to this statement was not ineffective. (Doc. 26 at 16). The
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R&R further concludes that this statement by the Prosecutor was not improper as it was a
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response to an argument by Petitioner, and because “counsel reminded the jurors that the
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results were inconclusive.” (Id.). Accordingly, the R&R ascertains that Petitioner is not
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entitled to habeas relief on this claim. (Id.).
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Petitioner maintains the allegations in this third sub-claim in his objection, again
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arguing that the Prosecutor’s comments are improper. (Doc. 27 at 4). Petitioner further
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objects on the grounds that the jury members are not experts in examining DNA. (Id.).
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This objection is overruled, as fact-finding is the essential function of the jury. See
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Apprendi v. New Jersey, 530 U.S. 466, 476–490 (2000). Further, the Court accepts and
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adopts the R&R’s findings on the merits as to this sub-claim. Thus, the R&R is accepted
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as specified above, and relief is denied on this claim.
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Failure to Interview Witnesses
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In his fourth sub-claim, Petitioner argues that trial counsel’s failure to interview
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additional potential witnesses violated his “Sixth Amendment right to effective assistance
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of counsel,” as these witnesses may have information about “what the suspects were
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wearing, . . . what race they were,” and whether more than one person was running from
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the scene of the crime. (Doc. 24 at 16–17). The R&R concludes that Petitioner’s claim
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fails as he has not proven that counsel’s “failure to identify and interview additional
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witnesses” establishes deficient performance under the standard established in Strickland
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v. Washington, 466 U.S. 668 at 687. (R&R at 17). This Court agrees.
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Objecting, Petitioner argues that counsel should have further investigated two
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witnesses’ whose descriptions of the event (Doc. 27 at Ex. B) do not describe Petitioner.
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(Doc. 27 at 5). The Court has reviewed the R&R’s conclusions on this theory and agrees
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that Petitioner has failed to prove deficient performance by counsel, or prejudice, as to
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this sub-claim. The Court further agrees with Respondent’s argument that “Petitioner
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cannot show deficient performance because his counsel could have reasonably decided
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not to interview or call these two witnesses as a matter of trial strategy.” (Doc. 31 at 5).
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Accordingly, this objection is overruled, the R&R is accepted and adopted, and relief is
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denied on this claim.
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Ineffective Assistance of Appellate and PCR Counsel
In his fifth and final sub-claim, Petitioner asserts that, by failing to raise the
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arguments included in his Petition, both appellate and post-conviction counsel were
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ineffective. (Doc. 7 at 7). As the arguments included in his Petition were without merit,
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the R&R concludes that “appellate and post-conviction counsel were not ineffective for
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failing to raise them.” (R&R at 17). This Court agrees. In his objection, Petitioner fails
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to produce any evidence supporting this allegation. (See Doc. 27 at 6). As a result, the
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Court overrules this objection. The R&R is accepted and adopted as to this fifth sub-
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claim, and relief is denied on this claim.
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Claim 3
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In his Third Claim, Petitioner alleges that by “knowingly presenting false
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testimony” and by contradicting the State’s DNA expert, the Prosecutor committed
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misconduct. (Doc. 7 at 8). As a result, Petitioner argues that the Prosecutor’s conduct
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violated Petitioner’s Fourteenth Amendment right to due process of law. (Id.) This Third
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Claim encompasses three separate sub-claims.
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False Testimony Claim regarding Petitioner’s Residence
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In the first sub-claim, Petitioner asserts that the Prosecutor knowingly elicited
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false testimony from Officer Gutierrez that Petitioner lived in South Phoenix instead of
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“Maryvale.” (Doc. 24 at 20–21). The R&R concludes that “Petitioner does not dispute
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that the jurors knew Petitioner’s actual address, nor does he dispute that the officer [later]
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agreed the address was north of ‘South Phoenix.’” (R&R at 18–19). Accordingly, the
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R&R further concludes that Petitioner’s claim fails, as Petitioner has failed to show that
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this testimony “had an injurious effect on the jury.” (R&R at 19). This Court agrees.
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Petitioner has not objected to the R&R as to this specific sub-claim of his Third Claim.
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As a result, the R&R is accepted and adopted as specified above, and habeas corpus relief
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is denied as to this sub-claim.
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False Testimony Claim regarding the Possession of $8.95
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In the second sub-claim, Petitioner asserts that the Prosecutor knowingly elicited
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false testimony from Detective Ybarra that Petitioner did not “have any money at the
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time of his arrest.” (Doc. 24 at 23). Petitioner alleges that this evidence would have
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corroborated his defense that he had money for a bus ticket. (Doc. 24 at 26). The R&R
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concludes that Detective Ybarra’s statement was, at most, inconsistent, as she agreed that
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the booking records indicate Petitioner had this money when accepted at the country jail,
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but “also stated that she did not believe the $8.95 was Petitioner’s and instead testified
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that $8.95 was the amount on Perez’s person.” (R&R at 20). The R&R further concludes
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that “Petitioner has not established that this testimony was false,” or that the testimony
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had a substantial and injurious effect on the jury’s decision. (Id.)
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In his objection to this claim, Petitioner requests an evidentiary hearing to examine
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the “Good Year arrest report to show cause that the arrest and booking sheet is not Perez
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and Martinez’s as Ms. Ybarra stated.” (Doc. 27 at 6). This objection is overruled because
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the arrest report that Detective Ybarra examined during trial at the behest of the
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Prosecutor does indicate Petitioner had $8.95 when accepted at the jail. (R&R at 19) (See
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also Doc. 24-1, Ex. B, at 23). Further, Detective Ybarra’s testimony was not false, as she
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agreed that the arrest report indicates Petitioner had $8.95 when booked at the county jail.
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(Id.). Accordingly, the R&R is accepted and adopted, and habeas relief is denied as to
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this sub-claim.
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Contradicting the State’s DNA Witness
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In the third sub-claim, Petitioner argues that the Prosecutor contradicted the DNA
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expert when the Prosecutor stated that “some of the exhibits from the lab do match up
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with the defendant.” (Doc. 24 at 29). The R&R concludes that this is the same argument
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rejected above (in Claim 2, sub-claim 3). (R&R at 20). Petitioner concedes that this issue
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was raised in Claim 2. (Doc. 27 at 7). Accordingly, the R&R is accepted and adopted,
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and habeas relief is denied as to this sub-claim.
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Claim 4
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In his fourth claim, Petitioner asserts that the State violated his Fifth Amendment
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guarantee against double jeopardy by convicting him of both Armed Robbery and Theft
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of Means of Transportation. (Doc. 24 at 32). Though Petitioner alleges he presented this
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issue in a direct appeal, the R&R notes that his claim in the Arizona Court of Appeals
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was instead based upon a violation of A.R.S. § 13–116. (R&R at 21).
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concludes that “to the extent Petitioner argues the sentence violated Arizona law, that
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argument is not cognizable on habeas review.” (Id.). Further, Petitioner has failed to
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show any cause to excuse the procedural default of any potential federal claim on this
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issue. (Id.). Finally, the R&R concludes that this fourth claim is meritless, as the Arizona
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Court of Appeals found that no double jeopardy violation occurred; the State may punish
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separate offenses included within the same transaction, and here “the theft of cash from
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the victim was separate from the theft of the vehicle.” (Id. at 22).
The R&R
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Petitioner objects that “[d]ouble jeopardy bars subsequent prosecutions of a single
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act.” (Doc. 27 at 7). However, the R&R assumed a federal claim was exhausted for
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purposes of determining whether this claim had merit, as indicated by its analysis of
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Petitioner’s argument that a Theft of Means of Transportation is a “lesser-included
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offense” of an Armed Robbery. (Doc. 26 at 20) (quoting Doc. 24 at 32). As a result, this
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objection does not change the outcome of this case and is overruled. Accordingly, the
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R&R is accepted and adopted as to Claim 4, and relief is denied on this claim.
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Claim 5
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Next, Petitioner claims that the trial court’s failure to apply a clear and convincing
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evidence standard when determining whether Petitioner’s pretrial identification was
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unduly prejudicial violated his rights to due process of law. (Doc. 24 at 32–33). The
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R&R concludes that the “Arizona state court’s fact finding was not unreasonable” as the
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pretrial identification by D.M. was neither unreliable nor impermissibly suggestive.
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(R&R at 23-24). The R&R further concludes that this claim fails because the Arizona
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Court of Appeals’ finding that no prejudice appears affirmatively in the record “was not
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based on an unreasonable application of clearly established federal law or an
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unreasonable determination of the facts.” (Id. at 25).
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Petitioner objects and alleges that he has extensively argued each of the five
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factors of Biggers.2 (Doc. 27 at 9). However, this objection is overruled, as the R&R
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2
Neil v. Biggers, 409 U.S. 188, 197 (1972).
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extensively reviewed the Arizona state court’s Biggers finding under a totality of the
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circumstances test, determining it was not unreasonable. (R&R at 22–25). Accordingly,
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the R&R is accepted and adopted as to this claim, and relief is denied.
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Claim 6
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In his sixth claim, Petitioner argues that the trial court erred in denying Petitioner a
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Batson3 challenge after the State struck a Hispanic juror, resulting in the violation of his
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Fourteenth Amendment right to due process. (Doc. 24 at 38–39). Though “Petitioner
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made a prima facie showing that the strike was based upon [the juror’s] race,” the
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Prosecutor indicated that the juror was dismissed based upon his lack of a high school
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degree (R&R at 26–27).
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discriminatory reason for striking a juror.” (Id. at 27). The R&R further concludes that
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Petitioner’s failure to demonstrate that the Prosecutor was purposefully discriminatory
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towards this Hispanic juror indicates that “the [Arizona] court of appeal’s rejection of
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Petitioner’s Batson claim was neither contrary to, nor an unreasonable application of,
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clearly established federal law.” (Id.). Accordingly, this claim fails. (Id.).
The R&R concludes that a “lack of education is a non-
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In his objection, Petitioner repeats his contention that the Prosecutor’s strike was
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discriminatory, contending that the juror may have had a GED instead of a high school
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degree by drawing a parallel to his own lack of a high school degree. (Doc. 27 at 10).
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The Court overrules this objection, as the R&R considered this counter-argument in its
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determination that striking a juror because of a lack of education is race-neutral. (R&R at
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27); see also United States v. Martin, 7 F.3d 679, 686–87 (7th Cir. 1993). Accordingly,
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the R&R is accepted and adopted on this sixth claim, and habeas relief is denied on this
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claim.
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Claim 7
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Petitioner next argues that he was unconstitutionally detained as the “investigatory
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stop was not based on reasonable suspicion.” (Doc. 7 at 12). As a result, Petitioner
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claims his Fourth Amendment rights were violated (Doc. 24 at 43). The R&R concludes
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Batson v. Kentucky, 476 U.S. 79 (1986).
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that this claim is not cognizable, as Petitioner had the opportunity to litigate this Fourth
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Amendment issue in both the Arizona trial court and Arizona Court of Appeals. (R&R at
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27–28). Accordingly, this claim fails, as “federal habeas corpus relief may not lie for a
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claim that evidence recovered through an illegal search or seizure was introduced at trial”
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where that claim has been fully and fairly litigated, as here. (Id.).
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The Petitioner has not raised any objection regarding this seventh claim (See Doc.
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27). As a result, the R&R is accepted and adopted on Claim 7, and habeas relief is
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denied as to this claim.
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Claim 8
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In his eighth claim in his Petition, Petitioner alleges that the imposition of the
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consecutive sentence for the Theft of Means of Transportation conviction violates his due
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process rights. (Doc. 7 at 13). Petitioner then asserts a violation of the Sixth Amendment
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Confrontation Clause in his Reply, arguing that because the theft victim did not testify at
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trial and because “the jury never decided” the theft charge beyond a reasonable doubt,
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Petitioner did not have an opportunity to confront this witness. (Doc. 24 at 45–46) (See
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U.S. CONST. amend. VI). First, the R&R concludes that the consecutive sentences
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claim raised in the Petition is the same as Petitioner’s fourth claim, and is procedurally
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defaulted. (R&R at 29). The Court accepts and adopts the R&R as to this theory.
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Second, the R&R concludes that because the confrontation claim was not raised in his
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Petition, this claim is waived, as “a reply ‘is not the proper pleading to raise additional
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grounds for relief’ in a habeas proceeding.” (Id.) (quoting Cacoperdo v. Demosthenes, 37
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F.3d 504, 507 (1994)). Alternatively, on the merits, the R&R concludes that Petitioner’s
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Confrontation Clause claim also fails as “the testimony of the victim was sufficient” to
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prove the Theft of Means of Transportation violation and “the victim was subject to
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cross-examination during trial.” (R&R at 29). This Court agrees.
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Petitioner’s objection asserts, as in his Reply (Doc. 24 at 45–48), that his Sixth and
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Fourteenth Amendment rights were violated because the Theft of Means of
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Transportation conviction was based on the state trial court’s finding that there was “a
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separate victim in this case, [] a separate owner of the vehicle” whom Petitioner claims he
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did not have the opportunity to confront. (Doc. 27 at 10–11). However, the R&R found,
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on the merits, that the victim, Deane Maki, testified in the state trial court that the co-
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defendant pointed a handgun at him and told him to “[g]et out of the cab.” (Doc. 26 at 29)
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(quoting Doc. 19-5, Ex. MMM, at 178–79). This same victim also testified that he saw
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the Petitioner “slide into the driver’s seat” after the co-defendant told the victim to get out
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of the taxicab. (Id. at 180). The Court accepts and adopts the R&R’s findings on the
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merits as to this sub-claim.
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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
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opportunity to cross-examine this victim. (See Doc. 19-5, Ex. MMM, at 36, 201–229).
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Further, the transcript of the state trial court proceedings illustrates that Petitioner’s
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counsel had the opportunity to cross-examine each additional witness called by the
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Prosecutor. (See Doc. 19-6, Ex. NNN, at 20, 46, 67, 102, 124; Ex. OOO, at 152, 177,
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195, 215, 227) (Doc. 19-7, Ex. PPP at 5; Ex. QQQ at 137). Accordingly, Petitioner’s
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objection that he did not have the opportunity to confront the victim is without merit.
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This Court also notes that the witnesses called by the Prosecutor, with the exception of
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the victim, Deane Maki, are not civilians, but, rather, are testifying in their capacity as
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law enforcement and corrections personnel.
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Additionally, this Court examined the jury instructions and notes that the trial
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court instructed the jury that the State has the burden of proving the Petitioner guilty
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beyond a reasonable doubt. (Doc. 19-7 at 49–50). As the Petitioner has not presented any
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evidence that the jury never decided the theft charge beyond a reasonable doubt,
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Petitioner’s objection is overruled.
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thoroughly, this Court also finds that Petitioner’s objection that the Theft of Means of
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Transportation conviction was based on a separate victim or separate owner of the
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vehicle has no merit as Petitioner has presented no evidence supporting these allegations
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nor does the record indicate these allegations are true.
After examining the state trial court record
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Accordingly, Petitioner’s
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objections are overruled. The R&R is accepted and adopted on Claim 8, and habeas
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relief is denied as to this claim.
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Claim 9
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In his Ninth Claim, Petitioner argues that “improper consideration in determining
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sentencing” resulted in the violation of his Fourteenth Amendment right to due process.
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(Doc. 7 at 14).
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inaccurate in its criminal history as “it double[d] the Defendant’s guilty plea as though he
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pleaded guilty to two armed robberies back in ’02,” and because Petitioner “was never
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convicted for two separate victims” in the present case. (Doc. 24 at 48). The R&R
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concludes that the imposition of the aggravated sentence neither violates Petitioner’s due
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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
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conviction’, [there was] threat of serious physical injury, the presence of an accomplice,
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and the commission of the offense for pecuniary gain.” (R&R at 29–30). The R&R
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further concludes that the “record does not support” Petitioner’s conclusory allegation
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“that the court double counted his prior felony conviction.” (Id. at 30). Accordingly, this
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Ninth Claim fails. (Id.)
Petitioner expands in his Reply that the presentence report “was
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The Petitioner has not raised any objection regarding this Ninth claim (See Doc.
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27). As this Court agrees with the R&R, the R&R is accepted and adopted on Claim 9.
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Habeas relief is denied as to this claim.
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Claim 10
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In his Tenth Claim, Petitioner alleges that the state of Arizona “retaliated against
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Petitioner for exercising [his] right to trial” in violation of his Fourteenth Amendment
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due process rights. (Doc. 7 at 15). Petitioner elaborates in his Reply, stating that “the fact
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that the Petitioner went through two separate trials which resulted in hung jury mistrials
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created the inference that the prosecution wanted to punish the Petitioner by increasing
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the Petitioner’s sentence. . . .” (Doc. 24 at 50). The R&R concludes that Petitioner’s
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allegation of “an inference of vindictiveness based upon errors and multiple trials” is
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meritless as it is not supported by the record. (R&R at 30). Accordingly, the R&R
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concludes that habeas corpus relief cannot be granted as to this disparity in sentencing
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claim as Petitioner does not present any grounds implicating the federal Constitution.
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(Id.). This Court agrees.
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Though Petitioner’s objection again asserts that his continuous trials were
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retaliatory (Doc. 27 at 11–12), this objection is overruled, as Petitioner fails to provide
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any evidence to support this allegation of vindictiveness. Accordingly, this Court accepts
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and adopts the R&R as to this Tenth Claim, and habeas relief is denied as to this claim.
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Claim 11
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Petitioner next claims a due process violation as a result of the trial court’s refusal
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to permit “Petitioner to present to the jury the newly discovered evidence” that he
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possessed $8.95 at the time of the offense; Petitioner alleges that this evidence would
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have corroborated his defense that the money was for a bus ticket. (Doc. 24 at 51–52).
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The R&R concludes that this new evidence, the receipt from the jail, is “at best
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cumulative”, and “the jurors were aware of at least one jail record.” (R&R at 31). The
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R&R further concludes that Petitioner’s claim is meritless as he cannot prove that the trial
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court’s error had a ‘substantial and injurious effect or influence in determining the jury’s
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verdict.’” (Id.) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Accordingly,
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the R&R recommends that habeas relief be denied as to this claim. (Id. at 31).
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Petitioner’s objection again asserts that the witness’s testimony regarding the
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$8.95 was “false.” (Doc. 27 at 12). This objection is overruled, as Petitioner fails to
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establish that this testimony was injurious or prejudicial. Accordingly, the R&R is
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accepted and adopted on Claim 11, and habeas relief is denied as to this claim.
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Claim 12
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In his Twelfth and final claim, Petitioner alleges that he was denied the
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presumption of innocence “after the State’s leading witness stated that [he] had a
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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
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reference to a prior trial). (R&R at 31). Petitioner concedes in his Objections that this
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Claim is discussed in Claim 2. (Doc. 27 at 12). This Court agrees with the R&R.
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Accordingly, the R&R is accepted and adopted on Claim 12 and habeas corpus relief is
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denied as to this claim.
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IV.
Motion for Evidentiary Hearing
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Though Petitioner has not filed a formal Motion for Evidentiary Hearing, he
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requests in his Petition that the Court “grant a new trial or re-sentencing.” (Doc. 7 at 19).
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The R&R concludes that no evidentiary hearing is needed as “[t]he record is sufficiently
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developed.” (R&R at 31). This Court agrees.
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In his objection, Petitioner asserts that “an evidentiary hearing should be granted.”
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(Doc. 27 at 13). This Court overrules this objection, as Petitioner’s Petition (Doc. 7) and
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Objections (Doc. 27) have failed to provide any indication that the record is insufficient.
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(R&R at 31). In his objection, Petitioner also asks the Court to reevaluate the evidence,
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and has attached Exhibits. (Doc. 27 at 13). Notably, in regard to the potential witnesses
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identified by Petitioner in Exhibit B to his Objections (discussed above in Claim 2, sub-
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claim 4), the Court notes that Petitioner may not use an evidentiary hearing merely to
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determine if these two witnesses have potentially favorable testimony. See United States
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v. Fuentes, 2009 WL 4730733, *5 (D. Ariz. Dec. 7, 2009) aff’d United States v. Fuentes,
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457 Fed.Appx 687 (9th Cir. 2011) (“Petitioner is not entitled to an evidentiary hearing as
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a fishing expedition to see if any of these individuals might have helpful testimony.”).
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Accordingly, the Petitioner’s request for an evidentiary hearing is denied.
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V.
Conclusion
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Based on the foregoing,
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IT IS ORDERED that the Motion for Evidentiary Hearing (Doc. 27 at 13) is
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denied.
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IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 26) is
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accepted as specified above; the objections of Petitioner (Doc. 27) are overruled as
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specified above; the Petition is denied, with prejudice, and the Clerk of the Court shall
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enter judgment accordingly.
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IT IS FINALLY ORDERED that, in the event Petitioner files a notice of appeal,
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a Certificate of Appealability is denied because the Petition is barred by a plain
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procedural bar and jurists of reason would not find this Court’s procedural decision
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debatable or wrong; further, Petitioner has failed to make a substantial showing of the
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denial of a constitutional right.
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Dated this 16th day of June, 2016.
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